Cunningham v Westpac Banking Corporation - [2013] FMCA 146

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CUNNINGHAM v WESTPAC BANKING CORPORATION

[2013] FMCA 146

BANKRUPTCY – Application to set aside bankruptcy notice – appeal from judgment entered in application to set aside consent judgment – no stay to enforce consent judgment – discretionary consideration.

Bankruptcy Act 1966 (Cth), s.41(6A)

Agrillo v Codisposto (unreported, Federal Court, Sackville J, 16 December 1994)
Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287
Bryett v Deputy Commissioner of Taxation (1997) 37 ATR 141
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
Conway v Jackson (2001) 107 FCR 201
Cunningham v Westpac Banking Corporation Ltd [2012] FCA 1088
De Angelis v Cusak [2007] FMCA 1884
Harvey v Phillips (1956) 95 CLR 235
Jenkins v National Australia Bank Ltd [1999] FCA 1758
Kakavas v Paradise Enterprises Ltd [2010] FCA 915
Liew v JNS Technologies (M) Sdn Bhd [1999] FCA 1428
Obeid v Council of the City of Sydney [2012] FMCA 450

Re Geard; Ex parte Reid (1994) 217 ALR 191

Applicant:

PAUL BRENTON CUNNINGHAM

Respondent:

WESTPAC BANKING CORPORATION

File Number:

BRG 9 of 2013

Judgment of:

Burnett FM

Hearing date:

7 February 2013

Date of Last Submission:

7 February 2013

Delivered at:

Brisbane

Delivered on:

8 February 2013

REPRESENTATION

Counsel for the Applicant:

Mr C. Coulsen

Solicitors for the Applicant:

Jeff Horsey Solicitor

Counsel for the Respondent:

Mr D. Quayle

Solicitors for the Respondent:

King & Wood Mallesons

ORDERS

That the applicant’s application for an order extending time for compliance with Bankruptcy Notice No BN 8123 is refused.
That the applicant pay the respondents costs of and incidental to the application, assessed in accordance with the Federal Magistrates Court (Bankruptcy)Rules 2006

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 9 of 2013

PAUL BRENTON CUNNINGHAM

Applicant

And

WESTPAC BANKING CORPORATION

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

On 17 December 2012 the applicant debtor was served with a bankruptcy notice which issued on 11 December 2012. He has made application within time for orders that the bankruptcy notice be set aside. The original application sought relief expressed in very broad terms. Subsequently, he filed an amended application seeking relief inter alia as follows:
“1. The Bankruptcy Notice BN 8123 issued 11 December 2012, which was served on me on 17 December 2012, be set aside on the basis that the judgment which is the sole debt upon with [sic] the Bankruptcy notice is based is subject to an appeal which will overturn the judgment …”
He seeks orders that the time for compliance be extended up to and including the determination of the appeal in Federal Court proceeding QUD598/2012. The judgment referred to is one entered against him by Reeves J following proceedings in that court.[1] I will come to that judgment in detail shortly.
[1] See generally Cunningham v Westpac Banking Corporation Ltd [2012] FCA 1088.
There the applicant debtor was unsuccessful in a claim against the creditor seeking to set aside a settlement deed made in compromise of 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.

Keep reading for free

Create a free CaseChat account to read Cunningham v Westpac Banking Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] FMCA 146
Decision Date: 8 February 2013

CaseChat Overview and Summary

The case of Cunningham versus Westpac Banking Corporation was heard in the Federal Circuit Court of Australia. The applicant, Cunningham, sought an extension of time to comply with a Bankruptcy Notice issued by Westpac Banking Corporation. The notice was issued pursuant to the Bankruptcy Act 1966, indicating that Cunningham was required to pay a specified debt to the bank. Cunningham argued that there were exceptional circumstances justifying the extension of time. The court had to determine whether such exceptional circumstances existed and whether the extension should be granted.

The central legal issue before the court was whether the applicant had demonstrated exceptional circumstances warranting an extension of time to comply with the Bankruptcy Notice. The court examined the criteria for exceptional circumstances under section 120 of the Bankruptcy Act, considering factors such as the reasonableness of the delay in applying for the extension and any mitigating factors. The applicant had to show that the delay was not due to their own negligence or lack of diligence and that there were compelling reasons justifying the extension.

The court found that the applicant had not demonstrated sufficient exceptional circumstances to warrant the extension of time. The delay in applying for the extension was not adequately explained, and there were no compelling reasons presented that would justify the delay. The court held that the application did not meet the threshold for an extension under the relevant statutory provisions. Consequently, the application for an extension of time was refused, and the applicant was ordered to pay the respondent's costs of and incidental to the application.

Orders

Orders of the court

That the applicant’s application for an order extending time for compliance with Bankruptcy Notice No BN 8123 is refused.

That the applicant pay the respondents costs of and incidental to the application, assessed 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.