FEDERAL COURT OF AUSTRALIA
Challen v Bendeich [1999] FCA 845
BANKRUPTCY – where trustee in bankruptcy made retrospective assessments of bankrupt’s income – review by AAT applied incorrect legislation – whether s 139W(1) Bankruptcy Act 1966 allows retrospective assessments of income – relevance of legislative amendments to interpretation of legislative provisions prior to amendments – whether costs certificate should be granted pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981
WORDS AND PHRASES – “likely to be derived” – “was derived” – “as soon as practicable”
Bankruptcy Act 1966 (Cth) ss 139M, 139P, 139Q, 139S, 139W, 139Y, 139ZG and 149D(1)(f)
Federal Proceedings (Costs) Act 1981 (Cth) s 6(1)Allina Pty Ltd v Commissioner of Taxation (1991) 28 FCR 203 cited
Kalwy v Secretary, Department of Social Security (1992) 38 FCR 295 cited
Minister for Human Services & Health v Haddad (1996) 39 ALD 557 cited
Comcare Australia v Hill [1999] FCA 488 citedPETER LESLIE CHALLEN v GRAHAM ROSS BENDEICH
QG 179 OF 1998
SPENDER, BURCHETT & HELY JJ
25 JUNE 1999
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 179 OF 1998
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
PETER LESLIE CHALLEN
ApplicantAND:
GRAHAM ROSS BENDEICH
RespondentJUDGES:
SPENDER, BURCHETT & HELY JJ
DATE OF ORDER:
25 JUNE 1999
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1. The appeal is allowed:
• The decision of AAT given on 7 December 1998 is set aside;
•The compulsory contributions assessments purportedly made by the respondent against the applicant on 9 August 1996 are quashed;
• The respondent is to pay the applicant’s costs of the appeal.
2.Pursuant to the provisions of s 6(1) of the Federal Proceedings (Costs) Act 1981 the respondent be granted a costs certificate in respect of the appeal to the effect that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of:
•The costs incurred by the respondent in relation to the appeal; and
•Any costs incurred by the applicant in respect of the appeal that are required to be paid by the respondent to the applicant in pursuance of Order 1.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG 179 OF 1998
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:
PETER LESLIE CHALLEN
ApplicantAND:
GRAHAM ROSS BENDEICH
Respondent
JUDGES:
SPENDER, BURCHETT & HELY JJ
DATE:
25 JUNE 1999
PLACE:
BRISBANE
REASONS FOR JUDGMENT
THE COURT:
The applicant became bankrupt on his own petition on 12 August 1993. Robert Thomas Adcock (“Adcock”) became his trustee on that date. The applicant had signed an authority pursuant to s 188 of the Bankruptcy Act 1966 (“the Act”) on 21 July 1993, hence his bankruptcy is deemed to have commenced on that date: s 115(2), s 40(1)(i).
On 29 October 1995 Adcock was replaced by the respondent…
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- AGLC
- Challen v Bendeich [1999] FCA 845
- Case
- [1999] FCA 845
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the AAT had correctly exercised its jurisdiction in upholding the assessments. The court had to determine whether the AAT's decision was flawed in law, including whether the assessments were procedurally fair and whether they complied with the applicable legislation. Additionally, the court considered whether the AAT had properly exercised its discretion and whether it had taken into account all relevant considerations and disregarded irrelevant ones.
The court found that the AAT had indeed erred in upholding the assessments. The reasoning was that the AAT had failed to adequately consider the evidence provided by Challen and had not correctly applied the relevant legal principles. The court held that the AAT's decision was not supported by the evidence and was therefore flawed. Consequently, the court set aside the AAT's decision and quashed the compulsory contributions assessments. The court ordered that Bendeich pay Challen's costs of the appeal and that Bendeich be granted a costs certificate in respect of the appeal, to be authorised by the Attorney-General.
Orders
Orders of the court
1. The appeal is allowed:
• The decision of AAT given on 7 December 1998 is set aside;
• The compulsory contributions assessments purportedly made by the respondent against the applicant on 9 August 1996 are quashed;
• The respondent is to pay the applicant’s costs of the appeal.
2. Pursuant to the provisions of s 6(1) of the Federal Proceedings (Costs) Act 1981 the respondent be granted a costs certificate in respect of the appeal to the effect that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of:
• The costs incurred by the respondent in relation to the appeal; and
• Any costs incurred by the applicant in respect of the appeal that are required to be paid by the respondent to the applicant in pursuance of Order 1.
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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