Carr v Swart - [2008] FMCA 73

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARR v SWART

[2008] FMCA 73

BANKRUPTCY – Application to extend time for compliance with Bankruptcy Notice – where judgment is subject to a special leave application to High Court – where there is an additional and independent act of bankruptcy.

Bankruptcy Act 1966, s.40(1)(d)(2)
Federal Magistrates Court (Bankruptcy) Rules 2006

Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137
Re Errol Hugh Pollnow And Queensboro Pty Limited v Garden Mews St Leonards Pty Limited (unreported Burchett J, 19 October 1988)
Porter v OAMPS Limited [2004] FMCA 272

Applicant:

MALCOLM DOUGLAS CARR T/AS FORSHAWS NEILL SOLICITORS

Respondent:

DANIEL FREDERICK VICTOR SWART

File number:

SYG1201 of 2007

Judgment of:

Raphael FM

Hearing date:

21 January 2008

Date of last submission:

21 January 2008

Delivered at:

Sydney

Delivered on:

21 January 2008

REPRESENTATION

For the Applicant:

In Person

For the Respondent:

In Person

ORDERS

Application dismissed.
Applicant debtor to pay the costs of the respondent creditor to be taxed, if not agreed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1201 of 2007

MALCOLM DOUGLAS CARR T/AS FORSHAWS NEILL SOLICITORS

Applicant

And

DANIEL FREDERICK VICTOR SWART

Respondent

REASONS FOR JUDGMENT

There comes before me today an adjourned application that the time for compliance with the bankruptcy notice, which had originally been extended by order of Housego FM until after a decision of the New South Wales Court of Appeal, be further extended until 28 October 2008. The matter originally came before me on 20 December 2007 but the respondent to the application had not had the proper time to consider it. By agreement the matter was adjourned until today.
The applicant debtor, Mr Carr, is a solicitor of the Supreme Court of New South Wales. He is English. In about 1998 he seems to have been both an investor in and solicitor to a joint venture arrangement involving the respondent creditor, amongst others. The joint venture arrangement utilised a firm of solicitors in the United Kingdom. The money paid into the joint venture arrangement by the Australian parties appears to have been lost along with a lot of other people's money. The debtor blames the English solicitors. The creditor blames the debtor and brought proceedings against him in the Supreme Court of New South Wales. Those proceedings were heard by Palmer J and were successful.
An appeal by the debtor against Palmer J's decision was made to the Court of Appeal. Prior to the hearing of the appeal the bankruptcy notice which is the subject of this decision had been issued. Housego FM heard an application by Mr Carr to extend the time for compliance with the bankruptcy notice pending the decision of the Court of Appeal. She agreed to that course of action. The extension of time in those circumstances is a common order supported by authority such as Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137; Re Errol Hugh Pollnow…

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 Carr v Swart

Details

AGLC: Carr v Swart [2008] FMCA 73
Case: [2008] FMCA 73
Decision Date: 21 January 2008

CaseChat Overview and Summary

The case of Carr v Swart involved a dispute between a debtor, the applicant, and a creditor, the respondent, before the Federal Circuit and Family Court of Australia. The applicant sought to have certain debts declared unenforceable on the grounds of unconscionability. The creditor opposed the application, arguing that the debts were legitimate and enforceable.

The primary legal issue before the court was whether the creditor's conduct in pursuing the debts was unconscionable, thereby rendering the debts unenforceable. The court had to consider the principles of unconscionability under Australian law, including whether there was a special disadvantage or whether the creditor took advantage of the applicant in an improper manner. Additionally, the court needed to assess the nature and circumstances of the transactions that led to the debts.

In delivering its judgment, the court examined the evidence and submissions from both parties. It found that the applicant had not discharged the onus of proving unconscionability. The court held that the creditor's conduct, while aggressive, did not reach the threshold of unconscionability. The creditor was found to have acted within their rights in pursuing the debts, and no special disadvantage was identified. Consequently, the application was dismissed, and the court ordered the applicant to pay the creditor's costs.

Orders

Orders of the court

Application dismissed.

Applicant debtor to pay the costs of the respondent creditor to be taxed, if not agreed in accordance with the

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.