Boss Lawyers Pty Ltd v Winn - [2021] FedCFamC2G 44

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Boss Lawyers Pty Ltd v Winn [2021] FedCFamC2G 44

File number(s): BRG 41 of 2021

Judgment of: JUDGE JARRETT

Date of judgment: 14 September 2021

Catchwords: BANKRUPTCY – Application for declaration as to service – declaration that creditor’s petition invalid – service of creditor’s petition.

Legislation:
Bankruptcy Act 1966 (Cth), ss 41, 41(6A), 44(1)(c), 180, 306(1)

Bankruptcy Regulations 1996 (Cth), regs 16.01, 16.01(1), 16.01(2)

Evidence Act 1995 (Cth), s 160(1)

Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), rr 1.04, 1.04(2), 4.04(1)(a)(i), 4.04(1)(a)(ii), 4.04(1)(a)(iii), 4.05

Federal Circuit Court Rules 2001 (Cth), 1.06, 6.01(2), 6.06(1), 6.06(2), 6.06(2)(a), 6.11, 6.11(1), 6.11(1)(b)

Federal Court (Bankruptcy) Rules 2005 (Cth), rr 1.03, 103(2)(a),1.04(1), 8.02

Federal Court Rules 2011 (Cth), r 1.34

Cases cited:
Allen, in the matter of Allen [2020] FCA 376

de Vries, in the matter of the bankrupt estate of Cunningham [2021] FCA 188

Nixon, in the matter of Nixon [2015] FCA 976

Pei Xu v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2013] FCA 419,

Winn v Boss Lawyers Pty Ltd [2021] FCCA 1067

Number of paragraphs: 41

Date of last submission/s: 11 June 2021

Date of hearing: 11 June 2021

Place: Brisbane

Solicitor for the Applicant: Boss Lawyers Pty Ltd

The Respondent: In person
ORDERS

BRG 41 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BOSS LAWYERS PTY LTD

Applicant

AND:
JULENE WINN

Respondent

ORDER MADE BY:

JUDGE JARRETT

DATE OF ORDER:

14 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The application in a case filed on 13 April, 2021 is dismissed.
2.The creditor’s petition filed on 10 February, 2021 be adjourned for hearing at 9:30am on 7 October, 2021.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE JARRETT:

On 10 February, 2021 Boss Lawyers Pty Ltd filed a creditor’s petition against Julene Winn. The creditor’s petition was listed before a registrar of the Court on 17 March, 2021.
On 16 March, 2021 Ms Winn filed a notice of appearance. In that notice of appearance she gave an address for service as 32 Danube Drive Strathpine, QLD, 4500.
On 17 March, 2021 there was no appearance for Ms Winn before the registrar. The solicitor for the petitioning creditor informed the registrar that the petition had not been served on her. The petition was adjourned to 24 March, 2021.
After the hearing on 17 March, 2021, the principal solicitor of the petitioning creditor posted a copy of the creditor’s petition to Ms Winn together with notice of the adjourned date of…

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: [2021] FedCFamC2G 44
Decision Date: 14 September 2021

CaseChat Overview and Summary

Boss Lawyers Pty Ltd filed an application against Winn in relation to a creditor’s petition. The application sought a declaration that the petition was invalid due to an alleged defect in the service of the petition. The case was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine whether there was a defect in the service of the creditor’s petition that rendered it invalid. The court needed to assess whether the service complied with the relevant provisions of the Bankruptcy Act 1966, and whether the defect, if any, was such that it rendered the petition invalid.

The court found that there was no defect in the service of the creditor’s petition. The court held that the petition was properly served and therefore valid. The court dismissed the application for a declaration that the petition was invalid. The court further ordered that the creditor’s petition be adjourned for hearing at a later date.

The court dismissed the application and ordered that the creditor’s petition be adjourned for hearing.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The application in a case filed on 13 April, 2021 is dismissed.

2. The creditor’s petition filed on 10 February, 2021 be adjourned for hearing at 9:30am on 7 October, 2021.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

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.

File number(s):	BRG 41 of 2021
Judgment of:	JUDGE JARRETT
Date of judgment:	14 September 2021
Catchwords:	BANKRUPTCY – Application for declaration as to service – declaration that creditor’s petition invalid – service of creditor’s petition.
Legislation:	Bankruptcy Act 1966 (Cth), ss 41, 41(6A), 44(1)(c), 180, 306(1) Bankruptcy Regulations 1996 (Cth), regs 16.01, 16.01(1), 16.01(2) Evidence Act 1995 (Cth), s 160(1) Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), rr 1.04, 1.04(2), 4.04(1)(a)(i), 4.04(1)(a)(ii), 4.04(1)(a)(iii), 4.05 Federal Circuit Court Rules 2001 (Cth), 1.06, 6.01(2), 6.06(1), 6.06(2), 6.06(2)(a), 6.11, 6.11(1), 6.11(1)(b) Federal Court (Bankruptcy) Rules 2005 (Cth), rr 1.03, 103(2)(a),1.04(1), 8.02 Federal Court Rules 2011 (Cth), r 1.34
Cases cited:	Allen, in the matter of Allen [2020] FCA 376 de Vries, in the matter of the bankrupt estate of Cunningham [2021] FCA 188 Nixon, in the matter of Nixon [2015] FCA 976 Pei Xu v Wan Ze Property Development (Aust) Pty Ltd (in liq) [2013] FCA 419, Winn v Boss Lawyers Pty Ltd [2021] FCCA 1067
Number of paragraphs:	41
Date of last submission/s:	11 June 2021
Date of hearing:	11 June 2021
Place:	Brisbane
Solicitor for the Applicant:	Boss Lawyers Pty Ltd
The Respondent:	In person

BRG 41 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	BOSS LAWYERS PTY LTD Applicant
AND:	JULENE WINN Respondent

ORDER MADE BY:	JUDGE JARRETT
DATE OF ORDER:	14 SEPTEMBER 2021