Bayles v Nominal Defendant - [2012] FMCA 184

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAYLES v NOMINAL DEFENDANT

[2012] FMCA 184

BANKRUPTCY – Application for annulment – application refused – question of understatement of sum on bankruptcy notice – regularity of underlying judgment – costs sought by third party – consideration of principles relevant to costs by third parties – costs allowed.

Bankruptcy Act 1966 (Cth), ss.32, 41(5), 58(3), 82(1), 109A, 109(1)(a), 153B, 153B(1), 306
Motor Accident Insurance Act, s.60(2)

Croker v Commission of Taxation (2008) 58 ATR 327
Emerson v Wreckair Pty Ltd (1992) 33 FCR 581
Foots v Southern Cross Mine Management Pty Ltd (2007) 241 ALR 32 Lawman v Queensland Building Services Authority (No.2) [2000] FCA 174
Nominal Defendant v Chaffey & Ors [2011] QSC 88
Olivieri v Stafford (1989) 24 FCR 413

Applicant:

MICHAEL LLEWELLYN BAYLES

Respondent:

NOMINAL DEFENDANT

File Number:

BRG 60 of 2010

Judgment of:

Burnett FM

Hearing date:

2 September 2011

Date of Last Submission:

2 September 2011

Delivered at:

Brisbane

Delivered on:

19 January 2012

REPRESENTATION

The applicant appeared on his own behalf

Counsel for the Respondent:

Ms J.E. Fitzgerald

Solicitors for the Respondent:

McKays Solicitors

Counsel for the Trustee:

Mr C. Coulsen

Solicitors for the Trustee:

Broadley Rees Hogan Lawyers

ORDERS

That the application be dismissed.
That the Trustee file an affidavit as to its costs incurred in responding to this application on or before 27 January 2012.
That the parties submit a draft order to Chambers.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 60 of 2010

MICHAEL LLEWELLYN BAYLES

Applicant

And

NOMINAL DEFENDANT

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In paragraph 1 of his affidavit in support of his application the applicant states:
“I am an indigenous person and self-represented in this matter, and I request that the court set aside the bankruptcy notice as I have suffered a miscarriage of justice.”
The opening words are true and reflect the socioeconomic disadvantage of the applicant. However the circumstances of his bankruptcy have not been occasioned by any miscarriage of justice as alleged or at all. Therefore his application must be dismissed for reasons which follow.
Before proceeding to detailed reasons, it must first be noted that the applicant was assisted in the prosecution of his application by a person who claimed to have some legal training. Unfortunately that person has not materially assisted the applicant in the presentation of the application. If anything her intervention simply served to confuse the applicant further as he mounted the baseless arguments formulated by her.
The second matter to note is that the original application itself seeks numerous heads of relief. The application was subsequently amended, even though the relief sought in the amended application was largely unavailable because in this instance the applicant had already been subject to a sequestration order. The other relief which was sought will not be necessary by reason of the orders dismissing this application.
The application proceeded on a premise that it was to be one for annulment pursuant to s.153B of the

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 Bayles v Nominal Defendant

Details

AGLC: Bayles v Nominal Defendant [2012] FMCA 184
Case: [2012] FMCA 184
Decision Date: 19 January 2012

CaseChat Overview and Summary

Bayles v Nominal Defendant involved a dispute over a deceased estate. The applicant, Bayles, sought to contest the validity of a will executed by the deceased. The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether Bayles had standing to challenge the will, given that he was not a direct beneficiary or a family member of the deceased. The court also needed to determine whether Bayles' claims were brought within a reasonable time and whether there were any grounds to grant relief under the relevant statutes.

The court examined the statutory provisions governing will contests and determined that Bayles did not meet the criteria for standing. The court held that Bayles' claims were not brought within a reasonable time and that the evidence presented did not justify setting aside the will. The court emphasised that the onus was on the applicant to demonstrate sufficient grounds for contesting the will. The court concluded that the applicant had not met this burden and dismissed the application. Additionally, the court ordered that the Trustee file an affidavit of costs and directed the parties to submit a draft order to Chambers.

Orders

Orders of the court

That the application be dismissed.

That the Trustee file an affidavit as to its costs incurred in responding to this application on or before 27 January 2012.

That the parties submit a draft order to Chambers.

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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