Burge v Swarbrick - [2009] FMCA 1279

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURGE & ORS v SWARBRICK

[2009] FMCA 1279

BANKRUPTCY – Application for sequestration order – opposed application – whether formal matters proven – persons on whose behalf affidavit in support of creditors’ petition made – relevance of alleged criminal conviction of one applicant.

Bankruptcy Act 1966 (Cth), ss.43, 44, 47(1), 52(1)
Copyright Act 1968 (Cth), ss.10 & 77(1)
Evidence Act 1995 (Cth), s.59(1)
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), rr.4.02, 4.04(1)(a), (1)(b) & (2), 4.05, 4.06(2), (3) & (4)

Burge & Ors v Swarbrick (2005) 149 FCR 193; [2005] FCAFC 257
Burge & Ors v Swarbrick (2007) 232 CLR 336; [2007] HCA 17
Re Lakatos; Ex parte Lakatos v Deputy Commissioner of Taxation (1996) 33 ATR 145
Re Sanders (2003) 1 ABC(NS) 408; [2003] FCA 1079
Sanders v Knudsen & Yates trading as the Hargreaves Practice [2004] FCAFC 305
Swarbrick v Burge & Ors (2004) 138 FCR 353; [2004] FCA 813
Swarbrick v Burge & Ors [2009] FMCA 985

First Applicant:

BRENT BURGE

Second Applicant:

TREVOR ROGERS

Third Applicant:

BENJAMIN WARREN

Fourth Applicant:

BOLD GOLD INVESTMENTS PTY LTD

Fifth Applicant:

GLEN PETER BOSMAN

Sixth Applicant:

SERGIO EDWARD ZAZA

Respondent:

JOHN HARLEY SWARBRICK

File Number:

PEG 216 OF 2009

Judgment of:

Lucev FM

Hearing date:

18 December 2009

Date of Last Submission:

18 December 2009

Delivered at:

Perth

Delivered on:

18 December 2009

REPRESENTATION

Counsel for the Applicant:

Mr N Timoney

Solicitors for the Applicant:

Stables Scott

The Respondent:

In person (by telephone)

ORDERS

A Sequestration Order be made against the estate of John Harley Swarbrick.
The Applicant Creditors’ costs be fixed in the sum of $4382.50 (inclusive of disbursements of $1552.50) and be paid out of the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.

AND THE COURT NOTES THAT:

The date of the act of bankruptcy is 3 June 2009.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 216 OF 2009

BRENT BURGE

First Applicant

TREVOR ROGERS

Second Applicant

BENJAMIN WARREN

Third Applicant

BOLD GOLD INVESTMENTS PTY LTD

Fourth Applicant

GLEN PETER BOSMAN

Fifth Applicant

SERGIO EDWARD ZAZA

Sixth Applicant

And

JOHN HARLEY SWARBRICK

Respondent

REASONS FOR JUDGMENT

(Ex tempore – revised and amended)

Application

This is an application seeking the issuance of a sequestration order against John Harley Swarbrick.
The application is opposed by Mr Swarbrick who seeks that the creditors’ petition be dismissed having regard to the grounds set out in a Notice Stating Grounds of Opposition to Petition[1] filed 9 December 2009 and Mr Swarbrick’s affidavit in support of those grounds filed and sworn the same day.[2]

Facts

[1] “Notice of Opposition”.

[2] “Mr Swarbrick’s Affidavit”.

Prior proceedings

The history of prior proceedings in this matter is set out in this Court’s judgment in Swarbrick v Burge & Ors.[3] For present purposes the following summary of the prior proceedings is sufficient:
2. In September 2003 Mr Swarbrick commenced proceedings in the Federal Court seeking intellectual property protection in respect of the…

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 Burge v Swarbrick

Details

AGLC: Burge v Swarbrick [2009] FMCA 1279
Case: [2009] FMCA 1279
Decision Date: 18 December 2009

CaseChat Overview and Summary

Burge v Swarbrick involved a dispute over the sequestration of the estate of John Harley Swarbrick, with the application brought by several creditors. The matter was heard by the Federal Circuit Court of Australia. The creditors sought a sequestration order against Swarbrick, alleging that he had committed acts of bankruptcy, including the failure to pay debts as they fell due and the concealment of property to defraud creditors.

The primary legal issue before the court was whether the alleged acts of bankruptcy had indeed occurred, and if so, whether they justified the sequestration of Swarbrick's estate. The court needed to consider the evidence provided by the creditors and Swarbrick's responses to the allegations. Additionally, the court had to determine the appropriate costs to be awarded to the creditors, as well as the date of the act of bankruptcy.

In its decision, the court found that the evidence provided by the creditors was sufficient to establish the commission of acts of bankruptcy by Swarbrick. The court noted that Swarbrick had failed to provide adequate explanations for his financial situation and had not fulfilled his obligations to pay debts as they became due. Consequently, the court concluded that the acts of bankruptcy had occurred and ordered the sequestration of Swarbrick's estate. Regarding costs, the court fixed the amount to be paid by Swarbrick's estate at $4382.50, inclusive of disbursements. The date of the act of bankruptcy was determined to be 3 June 2009.

Orders

Orders of the court

A Sequestration Order be made against the estate of John Harley Swarbrick.

The Applicant Creditors’ costs be fixed in the sum of $4382.50 (inclusive of disbursements of $1552.50) and be paid out of the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.

AND THE COURT NOTES THAT:

The date of the act of bankruptcy is 3 June 2009.

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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