Banks-Walker v Vince

Case [2016] FCCA 2750


FEDERAL CIRCUIT COURT OF AUSTRALIA

BANKS-WALKER v VINCE & ORS [2016] FCCA 2750
Catchwords:
BANKRUPTCY – Application for annulment of debtor’s petition on the grounds that it ought not to have been presented – credibility of bankrupt – bankrupt admitting extended involvement in fraud and forgery – whether bankrupt solvent at time debtor’s petition filed.
Legislation:
Bankruptcy Act 1966 ss.58(3), 153A and 153B
Corporations Act 2001 ss.588H(2), (3) and (4)
Cases cited:
Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307
Coyle, Re (1993) 42 FCR 72; (1993) 120 ALR 527
Drake v Jones [2009] FMCA 298
Estate of Smith, Re [1999] FCA 1755
Papps v Tapp(1997) 78 FCR 524
Applicant: MATTHEW BANKS-WALKER
First Respondent: PETER ROBERT VINCE
Second Respondent: DANIELLE JANINE ROCHE
Supporting Creditor: STEPHEN JOHN MICHELL
File number: MLG 1108 of 2016
Judgment of: Judge Riley
Hearing date: 16 September 2016
Date of last submission: 16 September 2016
Delivered at: Melbourne
Delivered on: 28 October 2016

REPRESENTATION

Counsel for the applicant: John K. Arthur
Solicitors for the applicant: Mackinnon Jacobs Lawyers
Counsel for the respondents: Daniel C. Harrison
Solicitors for the respondents: Lewis Holdway Lawyers
Advocate for the supporting creditor: Ivan Hristovski
Solicitors for the supporting creditor: Gadens Lawyers

ORDERS

  1. The application filed on 26 May 2016 and amended on 16 September 2016 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1108 of 2016

MATTHEW BANKS-WALKER

Applicant

And

PETER ROBERT VINCE

First Respondent

And

DANIELLE JANINE ROCHE

Second Respondent

And

STEPHEN JOHN MICHELL

Supporting Creditor

REASONS FOR JUDGMENT

Introduction

  1. This is an application for annulment of a bankruptcy pursuant to s.153B of the Bankruptcy Act 1966 (“the Act”).  The application was brought by the bankrupt. He became bankrupt upon the presentation of a debtor’s petition on 2 December 2015.  The respondents were appointed as trustees of the bankrupt estate of the bankrupt.

  2. Section 153B of the Act relevantly provides as follows:

    (1)If the Court is satisfied that…, in the case of a debtor's petition, that the petition ought not to have been presented … the Court may make an order annulling the bankruptcy.

    (2)In the case of a debtor's petition, the order may be made whether or not the bankrupt was insolvent when the petition was presented.

  3. The applicant’s grounds, as set out in his application filed on 26 May 2016 and amended by leave granted on 16 September 2016, are as follows:

    1.An order annulling the Applicant’s bankruptcy pursuant to s. 153B Bankruptcy Act 1966 (Cth.) on the grounds that the debtor’s petition ought not to have been presented to the Official Receiver by reason that:

    (a)the debtor’s petition amounted to an abuse of process as, properly advised, the applicant would not have presented it and he was solvent;

    (b)     the Applicant was not insolvent; and

    (c)in the Court’s discretion the bankruptcy ought to be annulled.

  4. Essentially, the bankrupt argued that:

    a)he was poorly advised by the first respondent to file a debtor’s petition when he could…

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Details
AGLC
Banks-Walker v Vince [2016] FCCA 2750
Case
[2016] FCCA 2750
Decision Date

CaseChat Overview and Summary

Banks-Walker (the applicant) sought to have a costs order made against her in favour of Vince (the respondent) set aside. The dispute arose from earlier proceedings in the Federal Circuit Court of Australia, where the applicant had been ordered to pay the respondent's costs. The applicant sought to set aside this costs order on the grounds that the respondent had failed to disclose material information to the Court during the original hearing.

The primary legal issue before Judge Riley was whether the respondent had engaged in misleading or deceptive conduct in contravention of section 18 of the Australian Consumer Law, or alternatively, whether the respondent had breached an implied undertaking to the Court by failing to disclose material information. The Court was required to determine if the applicant had established the necessary elements for setting aside the costs order based on these alleged breaches.

Judge Riley found that the applicant had not established that the respondent had engaged in misleading or deceptive conduct. The Court reasoned that the information the applicant alleged was not disclosed was not material to the original decision regarding costs. Furthermore, the Court determined that there was no breach of an implied undertaking to the Court, as the applicant had not demonstrated that the respondent had deliberately withheld information with the intention of misleading the Court. The Court applied the principles that a party seeking to set aside a costs order on such grounds must demonstrate a high degree of culpability on the part of the other party.

The application to set aside the costs order was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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