Brown v A Whistle and Co (1979) Pty Ltd - [2011] FMCA 423

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BROWN & ANOR v A WHISTLE & CO (1979) PTY LTD

[2011] FMCA 423

BANKRUPTCY – Application to review – creditor’s petition – debt agreement proposed – sequestration order made.

Bankruptcy Act 1966, ss.52, 185C(4)(c), 185F(1)(a)
Federal Magistrates Court (Bankruptcy) Rules 2006, r.7.06
Federal Magistrates Court Rules 2001, r.20.03(a)

Accounts Control Management Services Pty Ltd v Elmer [2007] FMCA 733
Ling v Enrobrook Proprietary Limited (1996) 74 FCR 19

Applicants:

JOHN BROWN AND JENNIFER BROWN

Respondent:

A WHISTLE & CO (1979) PTY LTD

File Number:

MLG 1553 of 2010

Judgment of:

Hartnett FM

Hearing date:

3 June 2011

Delivered at:

Melbourne

Delivered on:

17 June 2011

REPRESENTATION

Counsel for the Applicants:

Mr Felkel

Solicitors for the Applicants:

Merhi & Associates Barristers & Solicitors

Counsel for the Respondent:

Ms Burke

Solicitors for the Respondent:

Rothwell Lawyers Pty Ltd

ORDERS

The applicants have leave to amend the petition by dating it as

10 November 2010.
Re-verification and re-service be dispensed with.
The application for review filed 8 March 2011 is dismissed and the respondent’s costs be taxed and paid from the estates of the respondent debtors in accordance with the Bankruptcy Act 1966.
The Court affirms the orders made by Registrar Pringle on 25 January 2011.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1553 of 2010

JOHN BROWN AND JENNIFER BROWN

Applicants

And

A WHISTLE & CO (1979) PTY LTD

Respondent

REASONS FOR JUDGMENT

Before the Court is an application for review by John and Jennifer Brown, filed 8 March 2011. On 3 June 2011, the Court made an order by consent that there is leave to the applicants to file an application for review out of time.
Mr and Mrs Brown seek that the orders of Registrar Pringle made

25 January 2011 be set aside. Those orders are as follows:
(1)The applicant have leave to amend the petition by dating it as 10 November 2010.
(2)Re-verification and re-service be dispensed with.
(3)Sequestration orders be made against the estates of JOHN BROWN and JENNIFER BROWN.
(4)The applicant’s costs be taxed and paid from the estates of the respondent debtors in accordance with the Bankruptcy Act 1966.
(5) The Court noted that the date of the act of bankruptcy in respect of both respondents was 1 November 2010. The Court further noted that a consent to act as trustee had been signed by Timothy Mark Shuttleworth Holden.
Orders (1) and (2) of the orders made 25 January 2011 were sought on the hearing of this application and no objection was raised with respect thereto. Accordingly, the Court shall, on this application, make orders to include:
(1)the applicants have leave to amend the petition by dating it as

10 November 2010; and
(2) re-verification and re-service be dispensed with.
Ultimately, the Court on a hearing de novo of the Creditor’s Petition dismisses the application of Mr and Mrs Brown, and the effect of an order dismissing that application and…

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 Brown v A Whistle and Co (1979) Pty Ltd

Details

AGLC: Brown v A Whistle and Co (1979) Pty Ltd [2011] FMCA 423
Case: [2011] FMCA 423
Decision Date: 17 June 2011

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Brown v A Whistle and Co (1979) Pty Ltd involved a dispute where the applicants sought to amend a petition which had been filed out of time. The applicants also sought leave to re-verify and re-serve the petition. The respondents opposed these applications, arguing that the original petition had been filed beyond the permissible time limits and that re-verification and re-service should not be allowed. Additionally, the applicants filed an application for review of a decision made by a Registrar, which the respondents also opposed.

The primary legal issues before the Court were whether the applicants should be granted leave to amend the petition, re-verify and re-serve it, and whether the application for review should be dismissed. The Court also needed to consider the appropriate costs orders in light of the Bankruptcy Act 1966. The Court examined the relevant statutory provisions and case law concerning the amendment of filings and the discretion of the Court to allow such amendments.

The Court held that the applicants should be granted leave to amend the petition by dating it as 10 November 2010. The Court found that while the petition had been filed out of time, the applicants had a valid reason for the delay and that justice would be served by allowing the amendment. The Court also decided that re-verification and re-service should be dispensed with as the respondents had not demonstrated any prejudice that would result from these actions. Regarding the application for review, the Court dismissed it, finding that the Registrar’s decision was correct and that there was no merit in the application. The Court further ordered that the costs of the application for review be paid by the respondents from their estates in accordance with the Bankruptcy Act 1966.

The Court affirmed the orders made by Registrar Pringle on 25 January 2011, which were consistent with the Court’s decision. The applicants were granted leave to amend the petition, while re-verification and re-service were dispensed with. The application for review was dismissed, and costs were ordered to be paid from the estates of the respondents.

Orders

Orders of the court

The applicants have leave to amend the petition by dating it as

10 November 2010.

Re-verification and re-service be dispensed with.

The application for review filed 8 March 2011 is dismissed and the respondent’s costs be taxed and paid from the estates of the respondent debtors in accordance with the Bankruptcy Act 1966.

The Court affirms the orders made by Registrar Pringle on 25 January 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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