Bendigo and Adelaide Bank Ltd v Jaeger - [2018] FCCA 3031

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENDIGO AND ADELAIDE BANK LTD v JAEGER

[2018] FCCA 3031

Catchwords:
BANKRUPTCY – Creditor’s petition – application for a sequestration order.

PRACTICE AND PROCEDURE – Application for an adjournment to await Supreme Court of New South Wales Court of Appeal decision – whether arguable case – adjournment granted.

Legislation:
Bankruptcy Act 1966 (Cth), s.33
District Court Act 1973 (NSW), s.134

Supreme Court Rules 1970 (NSW), pt.14, r.2(1)(a)
Uniform Civil Procedure Rules 2005 (NSW), r.36.15

Cases cited:

Bendigo and Adelaide Bank Limited & ABL Nominees Pty Ltd v Jaeger (unreported, District Court of New South Wales, Gibb DJC, 1 December 2017)

Jaeger v Bendigo and Adelaide Bank Ltd [2018] NSWCA 116
Bendigo and Adelaide Bank v Jaeger [2018] NSWDC 244
Ahern v Deputy Commissioner of Taxation (QLD) [1987] FCA 312 (1987) 76
ALR 137
Commonwealth Bank of Australia v Qureshi [2009] FMCA 1111
Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; (2017) 343 ALR 632
Hutchings v Australia Securities and Investments Commission [2017] FCA 858
Sapphire Suite Pty Ltd v Bellini Lounge Pty Ltd [2018] NSWSC 1366
Nova 96.9 Pty Ltd v Natvia Pty Ltd [2018] NSWSC 1288
The NTF Group Pty Ltd v PA Putney Finance Australia Pty Ltd [2017] NSWSC 1194; (2017) 324 FLR 261
Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268
Falls Creek Ski Lifts Pty Ltd v Yee (1995) 37 NSWLR 344
Mcdonough v Owners Strata Plan No 57504 [2014] NSWSC 1708; (2014) 17 BPR 33,573
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571

Applicant:

BENDIGO AND ADELAIDE BANK LIMITED (ABN 11 068 049 178)

Respondent:

MICHAEL KARL JAEGER

File Number:

SYG 1619 of 2018

Judgment of:

Judge Nicholls

Hearing date:

5 October 2018

Date of Last Submission:

5 October 2018

Delivered at:

Sydney

Delivered on:

30 October 2018

REPRESENTATION

Solicitors for the Applicant:

R Maiorana of Turks Legal

Counsel for the Respondent:

N J Olsen

Solicitors for the Respondent:

Mercantile Legal

ORDERS

The proceedings are adjourned until judgment is handed down in the matter with the proceedings number 2018/00227044 in the Supreme Court of New South Wales, Court of Appeal.
The parties are to notify the Court within three days of the delivery of judgment.
The parties have liberty to apply for directions on three clear days’ notice.
The applicant (in the substantive proceedings) pay Mr Jaeger’s costs for the application for an adjournment and the hearing of that application as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1619 of 2018

BENDIGO AND ADELAIDE BANK LIMITED (ABN 11 068 049 178)

Applicant

And

MICHAEL KARL JAEGER

Respondent

REASONS FOR JUDGMENT

I have before me an application made by Mr Jaeger (the respondent debtor in the substantive proceedings) for an adjournment of proceedings brought under the Bankruptcy Act 1966 (Cth) (“the Act”) by Bendigo and Adelaide Bank Limited (“the Bank”) which seek to sequestrate the estate of Mr Jaeger.
The adjournment is requested to await Mr Jaeger’s…

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.

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Details

Case: [2018] FCCA 3031
Decision Date: 30 October 2018

CaseChat Overview and Summary

Bendigo and Adelaide Bank Ltd presented a creditor's petition seeking a sequestration order against Mr. Jaeger. Mr. Jaeger sought an adjournment of the hearing of the creditor's petition to await a decision from the Supreme Court of New South Wales Court of Appeal in separate proceedings that he contended were relevant to his defence.

The primary legal issue before the court was whether Mr. Jaeger had demonstrated an "arguable case" sufficient to warrant an adjournment of the creditor's petition hearing. This involved assessing whether the anticipated Court of Appeal decision had a real prospect of impacting the validity or enforceability of the debt underpinning the petition, or otherwise providing a basis for setting aside the petition.

Judge Nicholls granted the adjournment, finding that Mr. Jaeger had established an arguable case. The court was satisfied that the proceedings in the Court of Appeal raised substantial questions of law that, if decided in Mr. Jaeger's favour, could have a material bearing on the outcome of the creditor's petition. The adjournment was granted to allow for the resolution of these potentially determinative issues.

Orders