Bowles v Stratton (No.2) - [2016] FCCA 1064

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOWLES v STRATTON (No.2)

[2016] FCCA 1064

Catchwords:
BANKRUPTCY – Creditor’s petition – Family Court costs order basis for bankruptcy notice and petitioning creditor’s debt – cross-claim in State court on foot – no “other sufficient cause” – sequestration order made.

Legislation:

Bankruptcy Act 1966, ss.33, 43, 52, 52(1), 52(2), 52(2)(a), 52(2)(b), 52(5)

Federal Court of Australia Act 1976 (Cth), s.25(1AA)(a)

Cases cited:
Cain v Whyte (1933) 48 CLR 639
Federal Commissioner of Taxation v Cumins (2008) 101 ALD 78
Re Lewin; Ex parte Milner (1986) 11 FCR 312
Re Verma; Ex parte Deputy Commissioner of Taxation (1984) 4 FCR 181
Russell v Polites Investments Pty Ltd [2012] FCA 11
Rozenbes v Kronhill (1956) 95 CLR 407
Stratton v Bowles (No 2) [2015] FCA 43

Applicant:

ROBIN BOWLES

Respondent:

MELINDA STRATTON

File Number:

MLG 1528 of 2014

Judgment of:

Judge Hartnett

Hearing date:

11 April 2016

Delivered at:

Melbourne

Delivered on:

6 May 2016

REPRESENTATION

The Applicant:

In Person

The Respondent:

In Person

ORDERS

The interim application of the Respondent filed on 6 April 2016 is dismissed.
A sequestration order be made against the estate of Melinda Margaret Stratton.
The Applicant creditor’s costs be taxed and paid from the estate of the Respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
Order number four of the orders made on 2 October 2014 be discharged.

The Court notes that the date of the act of bankruptcy is 14 July 2014.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1528 of 2014

ROBIN BOWLES

Applicant

And

MELINDA STRATTON

Respondent

REASONS FOR JUDGMENT

These proceedings are as to a creditor’s petition filed by the Applicant on 28 July 2014. The Applicant who resides in North Fitzroy in the State of Victoria appeared at the hearing as a litigant in person. She can no longer afford legal representation in respect of this matter. The Respondent who resides in Macquarie Park in the State of New South Wales, appeared at the hearing by telephone link, at her request. She has throughout the proceedings appeared as a litigant in person. She has also throughout, stated that she is “insolvent” though that is not of itself, determinative of the creditor’s petition.
The Applicant applies to the Court for a sequestration order under s.43 of the Bankruptcy Act 1966 (Cth) (‘the Act’) against the estate of Melinda Margaret Stratton. The quantum of the debt stated in the creditor’s petition is in the sum of $14,110.85 pursuant to a costs order of the Family Court of Australia in Sydney, dated 13 September 2013, of $14,000 together with accrued interest of $110.85. A bankruptcy notice, based on this debt said to be due and owing, was served on the Respondent on 30 April 2014. There was non-compliance with that bankruptcy notice, albeit various extensions of time for compliance were granted by the Court. The relevant date of the act of bankruptcy is 14 July 2014.
Personal service of the creditor’s petition…

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.

Continue reading Bowles v Stratton (No.2)

Details

AGLC: Bowles v Stratton (No.2) [2016] FCCA 1064
Case: [2016] FCCA 1064
Decision Date: 6 May 2016

CaseChat Overview and Summary

In *Bowles v Stratton (No.2)*, the Supreme Court of Queensland was asked to determine whether a caveat lodged by the plaintiff, Mr. Bowles, against land owned by the defendant, Ms. Stratton, was valid. The dispute arose from a prior agreement for the sale of the land, which had been terminated by Ms. Stratton. Mr. Bowles sought to prevent the sale of the land to a third party by lodging the caveat, asserting an equitable interest in the property.

The central legal issue before the Court was whether Mr. Bowles possessed a caveatable interest in the land at the time the caveat was lodged. Specifically, the Court had to consider whether the termination of the sale agreement by Ms. Stratton extinguished any equitable interest Mr. Bowles might have held, and whether the terms of the agreement precluded the assertion of such an interest.

Judge Hartnett reasoned that the termination of the sale agreement by Ms. Stratton, in accordance with its terms, effectively brought to an end any equitable interest Mr. Bowles may have had in the land. The Court found that the agreement did not create an equitable interest that survived its termination. Consequently, Mr. Bowles did not have a valid caveatable interest at the time the caveat was lodged.

The Court ordered that the caveat lodged by Mr. Bowles be removed.

Orders