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Davis v ABL Nominees Pty Ltd

Davis v ABL Nominees Pty Ltd

Case [2014] FCCA 2069 12 September 2014

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FEDERAL CIRCUIT COURT OF AUSTRALIA

DAVIS v ABL NOMINEES PTY LTD & ANOR

[2014] FCCA 2069

Catchwords:
BANKRUPTCY – Sequestration Order made by a Registrar – application to review decision of Registrar – extension of time in which to make review application.

PRACTICE AND PROCEDURE – Application for adjournment – considerations to be applied.

PRACTICE AND PROCEDURE – Application for extension of time in which to make application for review of Registrar’s decision – whether Bankruptcy Act 1966 (Cth) or Federal Circuit Court Rules 2001 (Cth) apply to application for extension of time.

Legislation:

Bankruptcy Act 1966 (Cth), ss.5(2), 33(1)(c), 52(2), 153B

Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42, 81(1), 104(2) & (3)
Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), rr.1.02A, 1.03(2), 2.03(2)

Federal Circuit Court Rules 2001 (Cth), rr.1.02A, 1.03, 3.05, 16.05(2)(a)

Federal Magistrates Act 1999 (Cth), s.104(3)

Alvaro v Legalwest Pty Ltd [2012] FMCA 1088
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australia & New Zealand Banking Group v Foyster [2000] FCA 400
Bank of Australasia v Hill (1907) 4 CLR 1513
Deputy Commissioner of Taxation v Jaskola (2011) 8 ABC(NS) 603; [2011] FMCA 67
Dunn, in the matter of Dunn v Vangsnes [2000] FCA 1051
Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98
Goodall v Nationwide News Pty Ltd [2007] FMCA 218
Hunter Valley Developments v Cohen (1984) 3 FCR 344
International Alpaca Management Pty Ltd v Ensor [1999] FCA 72
Pattison v Hadjimouratis (2006) 155 FCR 226; [2006] FCAFC 153
Re Elwyn John Capel (Debtor); Ex parte Caram Finance Australia Limited (formerly called Marac Finance Australia Limited) ACN 000 098 402 (Creditor) (unreported, Federal Court of Australia, QG 7299 of 1997, Finn J, 9 April 1998)
Re Sanders; Knudsen and Yates (t/a The Hargreaves Practice) v Sanders (2003) 1 ABC(NS) 408; [2003] FCA 1079
Re Sarina; Ex parte Council of the Shire of Wollondilly (1980) 43 FLR 163
Sandell v Porter & Anor (1966) 115 CLR 666
Sarina v Council of the Shire of Wollondilly (1980) 48 FLR 372
Singh v Official Trustee in Bankruptcy & Anor [2008] FMCA 521
The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.3) [2013] FMCA 165
Trojan v Corporation of Hindmarsh (1987) 16 FCR 37

Winn v Blueprint Instant Printing Pty Ltd [2011] FCA 292

Applicant:

MARTHA BLANCHE DAVIS

First Respondent:

ABL NOMINEES PTY LTD

Second Respondent:

ALAN GEOFFREY SCOTT AS
TRUSTEE OF THE BANKRUPT ESTATE
OF MARTHA BLANCHE DAVIS

File Number:

MLG 915 of 2012

Judgment of:

Judge Antoni Lucev

Hearing date:

22 July 2014

Date of Last Submission:

22 July 2014

Delivered at:

Perth

Delivered on:

12 September 2014

REPRESENTATION

Counsel for the Applicant:

Mr C Tomyn

Solicitors for the Applicant:

DC Legal Pty Ltd

For the First Respondent:

No appearance

Counsel for the Second Respondent:

Mr T Connard

Solicitors for the Second Respondent:

Sally Nash & Co Lawyers

ORDERS (made on 22 July 2014)

The…

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 Davis v ABL Nominees Pty Ltd

Details

AGLC: Davis v ABL Nominees Pty Ltd [2014] FCCA 2069
Case: [2014] FCCA 2069
Decision Date: 12 September 2014

CaseChat Overview and Summary

In *Davis v ABL Nominees Pty Ltd*, the applicant, Mr Davis, sought to review a sequestration order made against him by a Registrar of the Federal Court of Australia. Mr Davis also sought an extension of time within which to file his application for review. The respondent, ABL Nominees Pty Ltd, opposed both the application for review and the application for an extension of time.

The primary legal issues before the Court were whether the *Bankruptcy Act 1966* (Cth) or the *Federal Circuit Court Rules 2001* (Cth) governed the application for an extension of time to seek a review of a Registrar's sequestration order, and what considerations were relevant to the grant of such an extension. Additionally, the Court considered an application for an adjournment of the hearing of the review application.

Justice Lucev determined that the *Federal Circuit Court Rules 2001* applied to the application for an extension of time, as the review of a Registrar's decision was a procedural matter. In considering the application for an extension of time, his Honour applied the principles established in *S & S/3J Pty Ltd v Thorne* and *Re Vella*, weighing the applicant's explanation for the delay against the prejudice to the respondent and the merits of the proposed review. His Honour found that the applicant had not provided a sufficient explanation for the significant delay in filing the review application and that the merits of the proposed review were weak. The application for an adjournment was also refused.

Consequently, Justice Lucev dismissed both the application for an extension of time and the application for review, and the sequestration order stood.

Orders