Davis v Fletcher - [2006] FMCA 1620

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DAVIS v FLETCHER

[2006] FMCA 1620

BANKRUPTCY – Creditor’s petition – validity of bankruptcy notice – a stay under an instalment order was current at date of issue – whether instalment order benefited the debtor – interpretation of application for instalments and registrar’s order – ambiguities arising from use of NSW uniform civil procedure forms – petition dismissed.

Bankruptcy Act 1966 (Cth), s.41(3)(b)

Civil Procedure Act 2005 (NSW), ss.17, 107, 107(2)
Uniform Civil Procedure Rules 2005 (NSW), rr.37.2(2)(a), 37.2(2)(b), 37.3

Re Johnson; Ex parte Johnson v Tonkin (1994) 53 FCR 70
Re Moss; Ex parte Tour Finance Ltd (1968) 13 FLR 101
Re Schekeloff; Ex parte Schekeloff v The Hopkins Group Pty Ltd (1989) 22 FCR 407
Repatriation Commission v Nation (1995) 57 FCR 25
Tatlers.com.au Pty Ltd v Davis [2006] NSWSC 1055

Applicant:

DAVIS DAVIS

Respondent:

DEBORAH JAYNE FLETCHER

File Number:

SYG2165 of 2006

Judgment of:

Smith FM

Hearing date:

23 October 2006

Delivered at:

Sydney

Delivered on:

23 October 2006

REPRESENTATION

Counsel for the Applicant:

Mr E Hyde

Solicitors for the Applicant:

Malcolm Johns & Company

Counsel for the Respondent:

Mr M Condon

Solicitors for the Respondent:

Sage Solicitors

ORDERS

The petition is dismissed.
The applicant must pay the respondent’s costs, including reserved costs, as agreed or taxed under the Bankruptcy Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2165 of 2006

DAVIS DAVIS

Applicant

And

DEBORAH JAYNE FLETCHER

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a creditor’s petition filed on 7 August 2006 seeking a sequestration order against the respondent. The petition is based upon a debt claimed to be owing in the amount of $55,000, being an amount unpaid under a judgment of the Supreme Court of New South Wales made on 5 May 2006 and entered on 8 May 2006. The judgment was entered against two defendants: the respondent and Tatlers.com.au Pty Ltd (“Tatlers”).
Some money was subsequently paid in reduction of the debt, but on the evidence before me there still remains an amount owing sufficient to support a sequestration order. The actual amount currently owing is not agreed between the parties, and there are also disputes as to the financial position of the respondent, and the significance of an unsuccessful statutory demand on Tatlers (see Tatlers.com.au Pty Ltd v Davis [2006] NSWSC 1055). It is not necessary for me to investigate the facts in relation to those matters.
I propose to address the second ground of opposition raised by the respondent which is:
2.At the time the Bankruptcy Notice was issued, there was an instalment order in force in the Supreme Court of New South Wales, which order operated as a stay;
Under s.41(3)(b) of the Bankruptcy Act 1966 (Cth) (“the Act”):
(3)A bankruptcy notice shall not be issued in relation to a debtor:
…
(b)if, at the time of the application for the issue of the bankruptcy notice, execution of a judgment or order to…

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 Davis v Fletcher 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: [2006] FMCA 1620
Decision Date: 23 October 2006

CaseChat Overview and Summary

In the case of Davis v Fletcher, the central issue was whether an individual and a corporation, who were both judgment debtors, could jointly apply for an instalment order for a judgment debt. The case was heard in the Supreme Court of Victoria. The dispute arose when the judgment debtors, who were both liable for the same judgment debt, sought to make a joint application for an instalment order using a single approved form. The court was required to determine whether the approved forms for making an instalment application, which are designed for either an individual or a corporation, could be used by multiple defendants, including both an individual and a corporation.

The court considered whether the approved forms and the relevant rules allowed for a joint application by multiple defendants, one of whom was an individual and the other a corporation. The court noted that the approved forms and the rules did not explicitly prohibit or provide guidance on the use of a single form by multiple defendants. The court held that since the forms require separate pages for "Party Details" and "Parties Moving the Motion," it suggested that a joint application by multiple defendants could be made using one of the forms. However, the court found that neither the forms nor the rules provided specific instructions for the scenario where the parties included both an individual and a corporation.

The court dismissed the petition and ordered that the applicant must pay the respondent's costs, including reserved costs, as agreed or taxed under the Bankruptcy Rules.

Orders

Orders of the court

The petition is dismissed.

The applicant must pay the respondent’s costs, including reserved costs, as agreed or taxed under the Bankruptcy Rules.

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

Section 107 of the Civil Procedure Act and relevant parts of the Uniform Rules are expressed in the singular, and no specific rules are made to deal with the situation where there are two defendants liable for a judgment debt. An uncertainty then arises from the approved forms for applying for an instalment order. The Uniform Rules provide: 37.2Application for instalment order by judgment debtor (cf DCR Part 31A, rule 2; LCR Part 27, rule 2) (1)A judgment debtor may apply to the court for an instalment order with respect to the amount owing under the judgment debt. (2)Such an application: (a) may be made whether or not some other instalment order is in force in relation to the judgment debt, and (b) must be supported by an affidavit as to the judgment debtor’s financial circumstances, and (c) must be dealt with as soon as practicable after it is made. (3)An application under this rule: (a) except as provided by paragraph (b), is to be dealt with by the registrar under rule 37.3, or (b) if it is made during a hearing before the court, is to be dealt with by the court under rule 37.4. (4)Notice of motion of an application under this rule does not have to be filed or served if the application is made during the hearing at which the judgment debtor is being examined pursuant to an order for examination. (5)An application under this rule may be made not only to the court in which judgment was entered but also, in the case of a judgment entered in a Local Court, to any other Local Court by which an examination is being conducted as referred to in rule 38.5 (2). 37.3 Instalment order made by registrar (1)The registrar may deal with an application for an instalment order: (a) by making an instalment order in relation to the amount owing under the judgment debt, or (b) by making an order refusing the application. (2)As soon as practicable after making an instalment order under this rule, the registrar: (a) must give notice of the order to the judgment creditor and the judgment debtor, and (b) must also give to the judgment creditor a copy of the affidavit referred to in rule 37.2 (2) (b). (3)Either party may file an objection to an order made under subrule (1) (a) or (b) at any time within 14 days after the order is made. Under s.17 of the Civil Procedure Act, “approved forms” are made by the Uniform Rules Committee, and “if a form is approved in relation to a document to be used in connection with proceedings in a court, a document that is filed with or issued by the court is to be in that form”. Two separate forms have been approved for making an instalment application under r.37(2)(a). These are forms 36 and 37, which are described respectively as “Notice of Motion to Pay by Instalment – Individual”, and “Notice of Motion to Pay by Instalments – Corporation”. There is no implication in the rules or forms that multiple defendants may not make a joint application by using only one of these forms. The converse is suggested, since each of them requires a separate page showing the “Party Details” and, in particular, as to “Parties Moving the Motion”. However, nothing in either of the forms or their instructions indicates what is to be done where those parties include an individual and a corporation.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.