Bartercard v Dickins - [2000] FMCA 13

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Bartercard Ltd v Barry Robert Dickins [2000] FMCA 13

BANKRUPTCY – Creditors Petition – Application to set aside sequestration order by Registrar – Bankruptcy Act 1966 s 52

Applicant:Bartercard Ltd
Respondent:  Barry Robert Dickins
File No:MZ123/00
Delivered on:  18^th December 2000
Delivered at:  Melbourne
Hearing Date:  18^th December 2000
Judgment of:  McInnis FM
REPRESENTATION
Applicant:Mr A Ellis instructed by Michael Sandor & Associates)
Respondent:  Mr B R Dickins in person
ORDERS:

The notice of motion dated 17 November 2000 be dismissed.

The costs of and incidental to the notice of motion, including reserve
             costs, be taxed, and when taxed, paid out of the bankrupt estate of the
             respondent debtor, number 3626 of 2000, with the same priority under
             section 109 of the Bankruptcy Act 1966 as if the sequestration order
             had been made.

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
MELBOURNE REGISTRY

No MZ123 of 2000

BETWEEN

BARTERCARD LTD (ACN 050 542 544)
Applicant

And

BARRY ROBERT DICKINS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by Barry Robert Dickins by way of a notice of motion dated 17 November 2000. Before this court, that notice of motion is regarded as an application and is an application to appeal from the orders made by Registrar Efthim on the 31st day of October 2000. On that day, the registrar made the following orders:

1. Leave be granted to amend paragraph 4 of the petition to substitute date of commission of act of bankruptcy 24 July 2000 for 22 July 2000.
2. Reverification and reservice be dispensed with.
3. A sequestration order be made against the state of Barry Robert Dickins.
4. The applicant's costs of and incidental to the petition be taxed and paid in accordance with the statute.

In support of the notice of motion, Mr Dickins, who is unrepresented before this court, relies upon an affidavit which he has sworn on 17 November 2000. That affidavit has attached to it two exhibits, namely, a medical report dated 14 November 2000 and a facsimile copy of a letter dated 10 November 1999, addressed to Mr Barry Dickins from Bartercard, the judgment creditor.

In addition, Mr Dickins has filed with the court an affidavit of service in relation to the material that was served by him on 21 November 2000, that is, an affidavit sworn 21 November 2000, where he indicates that the documents to which I have referred were left at the reception desk with Michael Sandor and Associates.

This matter came before me on 5 December 2000. On that occasion I made orders in relation to the further filing and service of other affidavits. Consequently, the court has received the following further material in addition to that material which was before the registrar: namely, an affidavit of Brook Adrian Bourke, sworn 11 December 2000; an affidavit of Jarryd Colin Gilmore, sworn 11 December 2000; an affidavit of Susan Rydell, sworn the 13th day of December 2000; an affidavit of Brook Adrian…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bartercard v Dickins

Details

AGLC: Bartercard v Dickins [2000] FMCA 13
Case: [2000] FMCA 13
Decision Date: 18 December 2000

CaseChat Overview and Summary

Bartercard Ltd filed a creditor's petition against Barry Robert Dickins, seeking a sequestration order. After a hearing, Registrar Efthim granted the order on 31 October 2000. Dickins filed a notice of motion seeking to set aside the sequestration order on 17 November 2000. The application was brought before Federal Magistrate McInnis on 18 December 2000. The primary issues were whether there was sufficient medical evidence to warrant setting aside the sequestration order and whether there were debts still owed that could be settled. The court considered the medical evidence provided by Dickins, which was deemed insufficient to warrant setting aside the sequestration order. The court also considered the discussion between Dickins and Bartercard representatives in November 1999 regarding a potential settlement. However, no action was taken to conclude the agreement, and no payment was made. The court concluded that there were no circumstances warranting setting aside the sequestration order.

The reasoning of the court was based on the medical evidence and the discussions between Dickins and Bartercard representatives. The medical evidence was deemed insufficient to show that Dickins was not aware of the implications of bankruptcy and the proceedings. The discussions between Dickins and Bartercard representatives regarding a potential settlement were considered, but no action was taken to conclude the agreement, and no payment was made. The court relied on the authorities cited by Mr. Ellis, including the unreported decision of Gabriel Jean Burton, ex parte Marsden International Australia Ltd v Volt Australia Ltd, which stated that the debtor must show some cause overriding the interests of the public in the stopping of unremunerative trading and the rights of individual creditors unable to get their debts paid to them as they become due.

The court dismissed the notice of motion and ordered that the costs of the notice of motion be paid out of the bankrupt estate of the respondent debtor, Barry Robert Dickins. The court concluded that there were no circumstances warranting setting aside the sequestration order.

Orders