FEDERAL CIRCUIT COURT OF AUSTRALIA
BKA Practice Co Pty Ltd v Nida [2021] FCCA 334
File number(s): MLG 712 of 2019 Judgment of: JUDGE A KELLY Date of judgment: 25 February 2021 Catchwords: BANKRUPTCY – application for review of registrar’s decision for sequestration of bankrupt’s estate – where petitioning creditor provided legal services to bankrupt – where proceeding brought for recovery of legal fees – where default judgment obtained – where protracted proceedings to set aside default judgment – where application for judicial review dismissed – where dismissal affirmed on appeal – applicable principles – de novo review – where debtor shown to have committed an act of bankruptcy at a time when personally present in Australia – where conditions upon which creditor may petition are satisfied – where proof of matters required for making of sequestration order satisfied – where Court not satisfied by bankrupt that she was able to pay her debts – whether Court should go behind judgment – applicable principles – where Court was not satisfied by bankrupt of genuine dispute as to warrant going behind judgment or of existence of any cross-demand or set-off – where Court not otherwise satisfied by bankrupt of other sufficient cause why discretion should be exercised to dismiss petition – application for review dismissed. Legislation: Bankruptcy Act 1966 (Cth), ss 5, 43, 44, 52, 109
Civil Procedure Act 2010 (Vic), ss 29, 31
Federal Circuit Court of Australia Act 1999 (Cth), s 104
Federal Circuit Court Rules 2001 (Cth), r 20
Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), sch 1
Cases cited: Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460
Culleton v Balwyn Nominees Pty Ltd (2017) 343 ALR 632
Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18
Nida v BKA Practice Pty Ltd [2020] VSC 158
Nida v BKA Practice Pty Ltd (No 2) [2020] VSC 770
Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132
Re Sarina, ex parte Wollondilly Shire Council (1980) 30 ALR 266
Re Sarina, Council of the Shire of Wollondilly (1980) 32 ALR 596
Sandell v Porter (1966) 115 CLR 666
Number of paragraphs: 70 Date of hearing: 10 February 2021 Place: Melbourne Counsel for the Applicant Mr Edward Moon Solicitors for the Applicant Belleli King Respondent: Ms Roona Nida (In person) ORDERS
MLG 712 of 2019 BETWEEN: BKA PRACTICE CO PTY LTD
ApplicantAND: ROONA NIDA
Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
25 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application for review filed on 12 January 2021 be dismissed.
2.The respondent pay the applicant’s taxed costs of the application for review, such costs to be paid pursuant to s 109(1)(a) of the Bankruptcy Act 1966 (Cth).
REASONS FOR JUDGMENT
JUDGE A KELLY
INTRODUCTION
On 12 January 2021, the respondent bankrupt, a barrister, filed an application for review of a registrar’s decision made on 3 December 2020.…
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- BKA Practice Co Pty Ltd v Nida [2021] FCCA 334
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- [2021] FCCA 334
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CaseChat Overview and Summary
The court was required to determine whether the respondent had committed an act of bankruptcy while personally present or ordinarily resident in Australia, whether the petitioning creditor had established a debt exceeding the statutory minimum, and whether there was any sufficient cause to dismiss the creditors' petition. Specifically, the court had to assess the validity of the respondent's claims regarding fraud in the judgment, defects in the bankruptcy notice, and the existence of a set-off or counterclaim.
Justice Kelly found that the respondent had committed an act of bankruptcy on 31 January 2019, when her application to set aside the bankruptcy notice was dismissed. The court was satisfied that the debt was owing and immediately payable, and rejected the respondent's submissions regarding fraud, defective notice, and any entitlement to money from the petitioning creditor. The court also found no sufficient cause to dismiss the petition, noting that the respondent had not established a genuine dispute as to her liability or a viable cross-demand, set-off, or counterclaim, despite numerous attempts to challenge the judgment and the bankruptcy proceedings.
The application for sequestration was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
On 20 November 2020, an appeal from that decision was dismissed by Ginnane J who examined in detail each of the grounds of appeal: Nida v BKA Practice Pty Ltd (No 2) [2020] VSC 770. In particular, as relevant to the question of apprehended bias, Ginnane J found that the bankrupt “was aware of the grounds of an apprehended bias application after the first order was made on 9 May 2018 because she was represented that day, but failed to do anything about it”: [88]. His Honour was not satisfied that any special circumstances were made out as to justify an extension of time and so dismissed the appeal: [90]-[91].Sequestration order Following publication of the reasons for judgment dismissing the appeal from the refusal of the application for an extension of time in which to seek judicial review, a registrar of this court heard the application for the making of a sequestration order against the bankrupt. At that hearing on 3 December 2020, the bankrupt sought a further adjournment in order to prosecute a summons filed in the Magistrates Court proceedings on 2 December 2020 seeking compensation and costs from the petitioning creditor and its barrister as a result of alleged breaches of the Civil Procedure Act 2010 (Vic). The registrar observed that the application was bought under s 29 of the Civil Procedure Act which required that any such application be made prior to the finalisation of the civil proceeding to which it related and that an extension of time may be sought under s 31 of that Act (which had not been granted). The registrar noted that in the Magistrates Court summons, which was returnable on 8 December 2020, the bankrupt had neither quantified the amount of her claim, nor supported it by any affidavit. The registrar also identified that the bankrupt now claimed, amongst other things, that she had not been served with court documents relied upon by the petitioning creditor in support of the application to obtain the default judgement and that the petitioning creditor had falsely claimed that those documents had been served. The registrar accepted the principles upon which it may be appropriate to adjourn a petition in circumstances where a debtor had a cross-claim against the creditor which, if successful, would exceed the judgment debt and cited Stratton v Bowles (No 2) [2015] FCA 43 (Stratton). As concerned such principles, the registrar correctly recognised that the debtor must establish that he or she had a bona fide and reasonably arguable claim which was not established merely by the production of a statement of claim in a separate proceeding or by pointing to such litigation. The registrar recognised that there must be sufficient evidence or other material to show that it satisfied both criteria to justify an adjournment and that to “demonstrate that it is reasonably arguable or of sufficient substance may require prima facie verification of the key factual elements as well as demonstrating legal tenability”: Stratton, [2015] FCA 43, [42] (Beach J).