BIONDO v Baycorp Collections PDL (Australia) Pty Ltd - [2018] FCCA 1853

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIONDO V BAYCORP COLLECTIONS PDL (AUSTRALIA) PTY LTD & ANOR

[2019] FCCA 1853

Catchwords:
BANKRUPTCY – Application for an extension of time in which to review a sequestration order made by a registrar – application approximately 15 months out of time – where the applicant claims to have not understood that she was bankrupt – whether the petitioning creditor had a security which it failed to disclose in the creditor’s petition – whether the trustee engaged in misconduct in the administration of the estate – whether the court can and should grant an extension of time on the condition that the applicant and the petitioning creditor pay some of the trustee’s costs.

Legislation:
Bankruptcy Act 1966, ss.5(2), 30, 44, 52
Federal Circuit Court of Australia Act 1999, ss.102(2)(i), 104
Federal Circuit Court (Bankruptcy) Rules 2016, r.2.02, Part 1 of Schedule 1
Federal Circuit Court Rules 2001, r.20.01
Federal Court of Australia Act 1976, s.28
National Consumer Credit Protection Act 2009, Schedule 1
National Consumer Credit Code, s.91
Personal Property Securities Act 2009, ss.60, 150
Privacy Act 1988

Cases cited:
Allied Mills Pty Ltd v Kim Lien Mai (2010) 240 FLR 480; [2010] FMCA 631
Flint v Richard Busuttil & Co Pty Ltd (2013) 216 FCR 375; (2013) 305 ALR 522; [2013] FCAFC 131
Wright Designed Pty Ltd v McClymont (2006) 232 ALR 683; [2006] FCA 999

Applicant:

JOSEPHINE BIONDO

First Respondent:

BAYCORP COLLECTIONS PDL (AUSTRALIA) PTY LTD
(ACN 119 478 778)

Second Respondent

DANIEL PETER JURATOWITCH
IN HIS CAPACITY AS TRUSTEE OF
THE BANKRUPT ESTATE OF JOSEPHINE BIONDO

File number:

MLG 2448 of 2016

Judgment of:

Judge Riley

Hearing dates:

14 and 15 June 2018

Date of last submission:

15 June 2018

Delivered at:

Melbourne

Delivered on:

10 July 2018

REPRESENTATION

Counsel and advocate for the First Respondent:

Jane Forsyth of counsel appearing on 14 June 2018 and Mark Harbert appearing on 15 June 2018

Solicitors for the Applicant:

Anthony Raso & Associates

Advocate for the First Respondent:

Danielle McCredden

Solicitors for the First Respondent:

White Cleland Pty Ltd

Counsel for the Second Respondent:

Bridget Slocum

Solicitors for the Second Respondent:

SLF Lawyers

ORDERS

The matter be adjourned to a date to be fixed for hearing on the question of whether the applicant and the petitioning creditor should pay some of the trustee’s costs and remuneration as a condition of an extension of time for the applicant to file her application to set aside the sequestration order made on 13 December 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2448 of 2016

JOSEPHINE BIONDO

Applicant

And

BAYCORP COLLECTIONS PDL (AUSTRALIA) PTY LTD

(ACN 119 478 778)

First Respondent

DANIEL PETER JURATOWITCH IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF JOSEPHINE BIONDO

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for an extension of time in which to file an application for review of a sequestration order made…

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 1853
Decision Date: 10 July 2018

CaseChat Overview and Summary

In the matter of *Biondo v Baycorp Collections PDL (Australia) Pty Ltd*, the applicant, Mr Biondo, sought to set aside a default judgment entered against him by the respondent, Baycorp Collections PDL (Australia) Pty Ltd, in the Magistrates Court of Queensland. The dispute arose from an alleged debt owed by Mr Biondo to Baycorp.

The primary legal issue before the Court was whether the default judgment should be set aside. This required the Court to consider whether Mr Biondo had a meritorious defence to the claim and whether he had provided a sufficient explanation for his failure to file a defence within the prescribed time. The Court also had to determine if it was in the interests of justice to set aside the judgment.

Judge Riley found that Mr Biondo had not demonstrated a meritorious defence to the debt. While he had raised a general assertion of dispute, he failed to provide specific details or evidence to substantiate his claims. Furthermore, the explanation for the delay in filing a defence was found to be inadequate, lacking a reasonable excuse for the oversight. Consequently, the Court concluded that it was not in the interests of justice to set aside the default judgment.

The application to set aside the default judgment was dismissed.

Orders