Coadys v Ribaric - [2004] FMCA 594

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COADYS v RIBARIC

[2004] FMCA 594

BANKRUPTCY – Creditors petition – no basis upon which the Court should go behind judgment.

Bankruptcy Act 1966, s.52

Legal Practice Act 1996

Corney v Brien (1951) 85 CLR 343
Wren v Mahony (1972) 126 CLR 212

Applicant:

COADYS (A FIRM)

Respondent:

ANTHONY RIBARIC

File No:

MZ 829 of 2004

Delivered on:

23 August 2004

Delivered at:

Melbourne

Hearing Date:

23 August 2004

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr Barker

Solicitors for the Applicant:

Coadys

Respondent:

In person

ORDERS

A sequestration order be made against the estate of Anthony Ribaric.
That the applicant creditor's costs, including reserved costs, if any, be taxed in accordance with the Federal Court Rules and be paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.
The court notes that the date of the act of bankruptcy is 12 April 2004.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 829 of 2004

COADYS (A FIRM)

Applicant

and

ANTHONY RIBARIC

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is a creditor's petition filed on 24 June 2004 by Coadys, a firm, (the applicant creditor) against Anthony Ribaric, (the respondent debtor). The creditor's petition has been supported by the usual affidavits in relation to service and affidavits otherwise complying with the requirements of the Bankruptcy Act, and in particular, those requirements set out in s.52 of the Bankruptcy Act 1966 (the Act).
The petition is based upon a bankruptcy notice which, I am satisfied, was served upon the respondent. That bankruptcy notice in turn would appear to be based upon a judgment entered in the Magistrates Court of Victoria in favour of the applicant creditor who was then the plaintiff and against the respondent who was then the second defendant. The certified extract of the order made in the Magistrates Court at Melbourne refers to a judgment being entered on the claim of $29,003 with costs of $4937.17. The notation on the order reads that the defendants having no defence to the action and having indicated an acceptance of liability the defence is struck out and judgment made for the plaintiffs.
In addition to the usual affidavits, the applicant creditor has relied upon an affidavit in this matter of David Michael Brett, sworn 18 August 2004. It is useful to perhaps understand the background to this application and to then in turn deal with the respondent's material and submissions made by him this day. Due allowance is given for the fact, that he is unrepresented.
The affidavit of Mr Brett refers to the chronology of events which, in brief terms, would appear to involve proceedings by a company of which the respondent is a director, ATR Industries Pty Ltd (ATR) which in June 2000 had instructed a firm of solicitors to issue proceedings in the commercial list of the Supreme Court against another company, Auskay International Pty Ltd (Auskay). It would appear that there are allegations…

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 Coadys v Ribaric

Details

AGLC: Coadys v Ribaric [2004] FMCA 594
Case: [2004] FMCA 594
Decision Date: 23 August 2004

CaseChat Overview and Summary

In the case of Coadys Pty Ltd v Ribaric, the applicant, Coadys, sought a sequestration order against the estate of the respondent, Anthony Ribaric. The matter was heard in the Federal Court of Australia. The primary dispute centred around a debt that Ribaric owed to Coadys, which led to the application for a sequestration order under the Bankruptcy Act 1966. Coadys argued that Ribaric had committed an act of bankruptcy, specifically failing to pay a judgement debt.

The court was tasked with determining whether Ribaric's failure to pay the judgement debt constituted an act of bankruptcy. Additionally, the court needed to assess the merits of Coadys' application for a sequestration order and to decide on the appropriate costs associated with the proceedings. The primary legal issue was whether the evidence presented by Coadys was sufficient to establish that Ribaric had indeed committed an act of bankruptcy.

The court found that Coadys had provided adequate evidence to establish that Ribaric had failed to pay the judgement debt, which constituted an act of bankruptcy. The court also noted that the date of the act of bankruptcy was 12 April 2004. Having determined that an act of bankruptcy had occurred, the court proceeded to grant the sequestration order against Ribaric's estate. Furthermore, the court ordered that the costs of the application be taxed in accordance with the Federal Court Rules and that these costs be paid from Ribaric's estate under the provisions of the Bankruptcy Act 1966.

Orders

Orders of the court

A sequestration order be made against the estate of Anthony Ribaric.

That the applicant creditor's costs, including reserved costs, if any, be taxed in accordance with the Federal Court Rules and be paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.

The court notes that the date of the act of bankruptcy is 12 April 2004.

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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