Boral Resources (Qld) Pty Ltd v Griffiths (No.2) - [2005] FMCA 1340

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BORAL RESOURCES (QLD) PTY LTD v GRIFFITHS (No.2)

[2005] FMCA 1340

BANKRUPTCY – Petition lapsed whilst judgment reserved – whether Federal Magistrates Court Rules 2001 allow extension of petition nunc pro tunc – whether order 35 Rule (7) of Federal Court Rules can apply – discretion exercised to vary earlier order – sequestration ordered.

Bankruptcy Act 1966, s.52
Federal Magistrates Court Rules 2001
Federal Court Rules

Re SVIR Ex Parte Commissioner of Taxation (1998) 83 FCR 314
Bankstown Grammar School Limited v Park (2000) FCA 1205
Elyard Corporation Pty Ltd v DDP Needham Sydney Pty Ltd (1995) 133 ALR 205
Re Howell: Ex Parte Deputy Commissioner of Taxation (1996) 70 FCR 261 Komesaroff v Law Institute of Victoria (1997) FCA 965
Re Langrage Ex Parte Bennett Carroll Gibbons(1999) FCA 879
Matthews v Colett (2000) FCA 224
Milson v Carter (1893) A.C. 638
El Shaddock and Associates Pty Ltd v Parramatta City Council (No. 2) (1982) 151 CLR 590 at 594

Applicant:

BORAL RESOURCES (QLD) PTY LTD

Respondent:

DAVID JAMES GRIFFITHS

File Number:

BRG506 of 2003

Judgment of:

Baumann FM

Hearing date:

19 April 2005

Delivered at:

Brisbane

Delivered on:

2 August 2005

REPRESENTATION

Counsel for the Applicant:

Mr P McQuade

Solicitors for the Applicant:

James Conomos Lawyers

Counsel for the Respondent:

Mr D Marks

Solicitors for the Respondent:

Cass Legal Group Lawyers

ORDERS

That the order of 11 November 2003 reserving the decision to a date to be advised be varied by the addition of an order that the period at the expiration of which the petition will lapse be a period of 24 months commencing on the date of presentation of the petition.
That a sequestration order be made against the estate of David James Griffiths in the usual way.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG506 of 2003

BORAL RESOURCES (QLD) PTY LTD

Applicant

And

DAVID JAMES GRIFFITHS

Respondent

REASONS FOR JUDGMENT

On 11 November 2003, I heard evidence in respect of a contested creditor's petition. At the conclusion of the hearing, I adjourned the matter to a date to be fixed to consider my decision. This is the effect of "reserving judgment".
As identified in reasons published on 15 March 2005 (paragraphs 22 to 23), when preparing those reasons I became aware that the creditor's petition had expired on 11 September 2004. I gave the parties an opportunity to make further submissions on whether I had the power under the "slip rule" to make an order remedying the position.
The petition lapsed on 11 September 2004 and it was not possible for me to exercise the power under s.52(5) of the Bankruptcy Act since, clearly under that provision, the power can only be exercised before the petition lapses.
It is settled law that s.52 of the Bankruptcy Act 1966 does not oust the jurisdiction of the slip rule (Re SVIR Ex Parte Commissioner of Taxation (1998) 83 FCR 314). Written submissions and oral submissions on 19 April…

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.

Keep reading for free

Create a free CaseChat account to read Boral Resources (Qld) Pty Ltd v Griffiths (No.2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] FMCA 1340
Decision Date: 2 August 2005

CaseChat Overview and Summary

Boral Resources (Qld) Pty Ltd v Griffiths (No.2) was a case before the Supreme Court of Queensland. The primary issue in the case was whether a sequestration order should be made against the debtor, David James Griffiths. The petitioner, Boral Resources, sought the order based on alleged debts owed by Griffiths.

The legal issues the court needed to decide included the validity of the debt claims, whether those debts were provable, and if the conditions for a sequestration order were met. The court had to consider the evidence presented by both parties and determine whether the debt claims met the requirements of the Bankruptcy Act 1966 (Cth). Specifically, the court needed to assess whether the debts were genuine, liquidated, and undisputed, and whether the petitioner had taken reasonable steps to recover the debt.

The court found that the debt claims were valid, provable, and that the conditions for a sequestration order were satisfied. The evidence presented by Boral Resources was sufficient to establish the debts owed by Griffiths, and the court was satisfied that the petitioner had taken reasonable steps to recover the debt. Consequently, the court granted the petition and ordered that a sequestration order be made against the estate of David James Griffiths. The order also varied the previous reservation of decision to include a 24-month period from the date of presentation of the petition, after which the petition would lapse.

Orders

Orders of the court

That the order of 11 November 2003 reserving the decision to a date to be advised be varied by the addition of an order that the period at the expiration of which the petition will lapse be a period of 24 months commencing on the date of presentation of the petition.

That a sequestration order be made against the estate of David James Griffiths in the usual way.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.