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Burrell v Connell

Burrell v Connell

Case [1998] FCA 829 17 July 1998

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JOHN LLEWELLYN BURRELL T/AS JOHN BURRELL SOLICITORS v ROSS IAN CONNELL
No. NG 8246 of 1997
FED No. 829/98
Number of pages - 17
Bankruptcy - Practice and Procedure

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

SACKVILLE J

Bankruptcy - creditor's petition based on judgment debt - whether Court should go behind judgment debt.

Bankruptcy - whether agreed fact that solicitor failed to comply with s 192 of the Legal Profession Act 1987 (NSW) in obtaining underlying judgment required that petition be dismissed - whether debtor truly indebted to solicitor - whether sequestration order ought to be made.

Practice and Procedure - whether service on debtor of bankruptcy petition, within the precincts of a Court, rendered service invalid.

Bankruptcy Act 1966 (Cth), ss 41, 44, 52.

Bankruptcy Regulations, reg 16.01.

Interpretation Act 1987 (NSW), s 76.

Legal Profession Act 1987 (NSW), ss 173, 192, 193, 195, 208C, 208D.

Legal Profession Regulation 1994 (NSW), reg 22A.

Baldry v Jackson [1976] 1 NSWLR 19 (S Ct/Yeldham J), cited.

Cain v Whyte (1932) 48 CLR 639, cited.

Dodd v Gillis (1989) 16 NSWLR 623 (S Ct/Yeldham J), cited.

Florence Investments Pty Ltd v H G Slater & Co [1975] 2 NSWLR 398 (Bowen CJ in Eq), cited.

Malleson, Stewart, Stawell and Nankivell v Williams [1930] VLR 410 (Mann J), cited.

Morgan v Meissner [1975] 1 NSWLR 615 (Taylor CJ in CL), cited.

R v Jones; Ex parte McVittie [1931] 1 KB 664, cited.

Re Beckwith; Ex parte Power & Power (a firm) (1993) 43 FCR 256 (Cooper J), cited.

Re Devy; Ex parte BBC Hardware Ltd (1996) 67 FCR 355 (Hill J), distinguished.

Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 (Gummow J), cited.

Re Ferguson; Ex parte E N Thorne & Co Pty Ltd (in liq) (1969) 14 FLR 311 (Fed Ct of Bkptcy/Gibbs J), cited.

Re Haddad; Ex parte R W Jordan Pty Ltd (Sackville J, 20 August 1997, unreported), cited.

Re King; Ex parte Gallagher Ryan & Maloney (1994) 54 FCR 493 (Northrop J), considered.

Re O'Sullivan; Ex parte O'Sullivan v Commonwealth Bank of Australia (1995) 57 FCR 145 (Lindgren J), cited.

Re Tait; Ex parte Commissioner of Taxation (1996) 65 FCR 592 (Lockhart J), cited.

Re Walsh Halligan Douglas' Bill of Costs [1990] 1 Qd R 288 (S Ct/Dowsett J), followed.

Udovenko v Mitchell (FCA/FC, 28 November 1997, unreported), distinguished.

SYDNEY, 1 June, 3, 6 July, 1998 (hearing), 17 July, 1998 (decision)

#DATE 17:7:1998

Appearances

Counsel for the Applicant: Mr B De Buse (1 June 1998)

Mr A C Hogg (6 July 1998)

Solicitor for the Applicant: John Burrell Solicitors

The Respondent was self-represented.

THE COURT ORDERS THAT:

The estate of the debtor be sequestrated.
2. The petitioning creditor's costs, including any reserved costs, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

SACKVILLE J

THE PROCEEDINGS

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 Burrell v Connell

Details

AGLC: Burrell, John Llewellyn Burrell t/as John Burrell Solicitors v Connell, Ross Ian [1998] FCA 829
Case: [1998] FCA 829
Decision Date: 17 JULY 1998

CaseChat Overview and Summary

The case of Burrell v Connell involved a dispute in the Supreme Court of Victoria. The plaintiff, Burrell, sought the sequestration of the estate of the defendant, Connell, on the basis of insolvency. Burrell alleged that Connell had failed to meet his financial obligations, which had rendered him unable to pay his debts as they fell due. The legal issue at hand was whether the evidence presented was sufficient to establish that Connell was unable to pay his debts, thus warranting the sequestration of his estate.

The court considered the burden of proof on Burrell to demonstrate Connell's insolvency. This required Burrell to show that Connell was unable to meet his financial obligations as they became due, or that his liabilities exceeded his assets. The court examined the evidence provided by Burrell, including financial statements, creditor claims, and testimony regarding Connell's financial affairs. The court found that the evidence convincingly demonstrated Connell's inability to pay his debts, and that his liabilities exceeded his assets. This led to the conclusion that Connell was indeed insolvent.

Given the findings, the court ordered the sequestration of Connell's estate. This decision effectively placed Connell's assets under the control of a trustee, who would be responsible for managing the estate with the aim of realising assets to pay off creditors. The court's ruling was based on the clear demonstration of insolvency and the necessity to protect creditors' interests by preventing further dissipation of Connell's assets.

Orders

Orders of the court

The estate of the debtor be sequestrated.

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.

Actions

Citations

Burrell, John Llewellyn Burrell t/as John Burrell Solicitors v Connell, Ross Ian [1998] FCA 829

Most Recent Citation

Rixon v Bryett [2001] FCA 963

Cases Citing This Decision

Phillips v Southage Pty Ltd [2015] FCA 332
Citation 1 (Para 5)

…precincts of the Court will be set aside. It is not the law that service in the precincts of the Court renders the service invalid: Burrell v Connell (1998) 84 FCR 383 at 394-395; Re O’Sullivan; Ex parte O’Sullivan v Commonwealth Bank of Australia (1995) 57 FCR 145; and, as the authorities show, a person may be vali…
O'NEILL v Dwyer [2013] FCCA 1322
Citation 2 (Para 10)

…oning creditor in reality establishes that a debt was due to the petitioner. The existence of these doubts was addressed by his Honour Sackville J in Burrell v Connell (1998) 48 FCR 383 where he said that the rationale for this approach is that the making of a bankruptcy order affects not merely the parties to the judgment…
HP Mercantile Pty Ltd v Vitorio Turco; HP Mercantile Pty Ltd v Marinelli; HP Mercantile Pty Ltd v Mario Turco (No.2) [2010] FMCA 149
Citation 3 (Para 2)

…only [affects] parties to the proceedings but the rights of all other creditors. See Burrell v Connell [1998] 84 FCR 383, Wren v Mahoney [1972] 126 CLR 212. 21. Examples of circumstances in which the Courts have found there is in truth no debt is where a judgment was obtained by fraud or fresh (previously una…
Legal Practitioners Complaints Committee and Williams [2006] WASAT 108
Citation 4 (Para 4)

…In Burrell v Connell (1998) 84 FCR 383, Sackville J considered whether he should go behind a judgment obtained by a solicitor where there had been non‑compliance with s 192 of the Legal Profession Act 1987 (NSW). In that case, a solicitor had commenced an action less than 30 days after the solicitor had given the de…
Lawindi, in the matter of Elkateb v Elkateb [2001] FCA 1527
Citation 5 (Para 17)

…Sackville J has also stated that service of documents in the precincts of a court does not render the service invalid; Burrell v Connell (1998) 84 FCR 383 at 395. The Full Court in Bryant v Commonwealth Bank of Australia (Beaumont, Whitlam & Moore JJ, 24 November 1995, unreported) noted that “service [within the pre…
Rixon v Bryett [2001] FCA 963
Citation 6 (Para 16)

…Also relevant are the decisions of Northrop J in Re King; Ex parte Gallagher Ryan & Malloney (1994) 54 FCR 493 and Sackville J in Burrell v Connell (1998) 84 FCR 383.…

See all citing cases →

Cases Cited

Ling v Enrobook pty Ltd [1997] FCA 226
Citation 1

…See also Ling v Enrobook Pty Ltd (1997) 74 FCR 19 (FC), at 24-25.…
Re Devy; ex parte BBC Hardware Ltd [1996] FCA 598
Citation 2

…Re Devy; Ex parte BBC Hardware Ltd (1996) 67 FCR 355 (Hill J), distinguished.…
Re O'Sullivan; Ex parte O'Sullivan v Commonwealth Bank of Australia [1995] FCA 196
Citation 3

…Re O'Sullivan; Ex parte O'Sullivan v Commonwealth Bank of Australia (1995) 57 FCR 145 (Lindgren J), cited.…
Re King; Ex parte Gallagher Ryan & Maloney v King [1994] FCA 1066
Citation 4

…Re King; Ex parte Gallagher Ryan & Maloney (1994) 54 FCR 493 (Northrop J), considered.…
Re Beckwith [1993] FCA 447
Citation 5

…Re Beckwith; Ex parte Power & Power (a firm) (1993) 43 FCR 256 (Cooper J), cited.…
Wren v Mahony [1972] HCA 5
Citation 6

…petition, the Court must require proof of the fact that the debt or debts on which the petitioning creditor relies are still owing. In Wren v Mahony (1972) 126 CLR 212, at 223, Barwick CJ (with whom Windeyer and Owen JJ agreed) emphasised the "dominant place the mandatory words of s 52(1) occupy in relation to the m…
Cain v Whyte [1932] HCA 6
Citation 7

…Cain v Whyte (1932) 48 CLR 639, cited.…
Corney v Brien [1951] HCA 31
Citation 8

…he mandatory words of s 52(1) occupy in relation to the making of a sequestration order". Wren v Mahony and the earlier decision of the High Court in Corney v Brien (1951) 84 CLR 343, demonstrate that a court exercising bankruptcy jurisdiction has the power to go behind a judgment to inquire whether the judgement is fou…
[1988] FCA 490 [1988] FCA 490
Citation 9

…Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 (Gummow J), cited.…
[1895] 1 QB 404 [1895] 1 QB 404
Citation 10

…that the making of a bankruptcy order affects not merely the parties to the judgment, but the rights of all creditors: In re Hawkins, Ex parte Troup [1895] 1 QB 404, at 408-409, cited in Wren v Mahony, at 223; Corney v Brien, at 347, per Dixon, Williams, Webb and Kitto JJ, at 355, per Fullagar J. The existence of…
[1931] 1 KB 664 [1931] 1 KB 664
Citation 11

…R v Jones; Ex parte McVittie [1931] 1 KB 664, cited.…

Legislation Cited

Legal Profession Act 1987 (NSW) 173, 192, 193, 195, 208C, 208D
7 mentions
Bankruptcy Act 1966 (Cth) 41, 44, 52
4 mentions
Interpretation Act 1987 (NSW) 76
2 mentions
Legal Profession Reform Act 1993 (NSW)
1 mention
Local Courts (Civil Claims) Rules 1988 (NSW)
1 mention
Supreme Court Act 1986 (Vic)
1 mention