Dekkan v Macquarie Leasing Pty Ltd - [2008] FCA 1235

FEDERAL COURT OF AUSTRALIA
Dekkan v Macquarie Leasing Pty Ltd [2008] FCA 1235
Bankruptcy Act 1966 (Cth) s 41(6A)
Federal Court of Australia Act 1976 (Cth) ss 35A(5), 35A(6)
Federal Court (Bankruptcy) Rules 2005 rr 1.03(2), 3.03
Federal Court Rules O 35A r 2(b)
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 referred to
Harris v Caladine (1990) 172 CLR 84 followed
Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 cited
Mazukov v University of Tasmania [2004] FCAFC 159 cited
Jageev Pty Ltd v Deane (1997) 72 FCR 398 followed
Pittalis v Sherefettin [1986] QB 868 referred to
BASSAM DEKKAN and JEANETTE DEKKAN v MACQUARIE LEASING PTY LTD
NSD 832 OF 2008
PERRAM J
19 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 832 OF 2008

BETWEEN:

BASSAM DEKKAN
First Applicant

JEANETTE DEKKAN
Second Applicant

AND:

MACQUARIE LEASING PTY LTD
Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

19 AUGUST 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The orders made by the Court on 13 August 2008 be vacated.
2.The orders made by Registrar Hedge on 9 July 2008 be set aside.
3.There be no order as to costs in relation to the applicants’ application for review.
4.Pursuant to s 41(6A) of the Bankruptcy Act 1966 (Cth) and rule 3.03 of the Federal Court (Bankruptcy) Rules 2005, the time for compliance by the applicants with the requirements of the bankruptcy notice be extended up to and including 17 September 2008.
5.The applicants file and serve an amended application and affidavits to be relied upon by them on or before 9 September 2008.
6.The respondent file and serve any affidavits in reply on or before 16 September 2008.
7.The matter be stood over before the Registrar at 9.30 am on 17 September 2008.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 832 OF 2008

BETWEEN:

BASSAM DEKKAN
First Applicant

JEANETTE DEKKAN
Second Applicant

AND:

MACQUARIE LEASING PTY LTD
Respondent

JUDGE:

PERRAM J

DATE:

19 AUGUST 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

By an application dated 30 July 2008, the applicants apply pursuant to s 35A(6) of the Federal Court of Australia Act 1976 (Cth) (“the Act”) for a review of a decision made by Registrar Hedge on 9 July 2008. The proceedings before the Court are proceedings by Mr Dekkan and his wife to set aside a bankruptcy notice issued to them by Macquarie Leasing Pty Ltd. The matter was first returnable before the Court on 18 June 2008. On that occasion, the Registrar extended the time for compliance with the bankruptcy notice to 9 July 2008 and directed the applicant to file and serve an amended application and affidavits in support by 4 July 2008. This she did because the application appeared to disclose no proper grounds for setting aside a bankruptcy notice.
When the matter came…

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.

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Details

Case: [2008] FCA 1235
Decision Date: 19 August 2008

CaseChat Overview and Summary

The matter between Dekkan and Macquarie Leasing Pty Ltd was before the Federal Court, arising from a dispute regarding compliance with a bankruptcy notice. Macquarie Leasing sought to enforce a bankruptcy notice against Dekkan, who contested the notice's validity. The applicants sought a review of the orders made by the Court and the Registrar concerning the bankruptcy notice, as well as an extension of the compliance time. The primary legal issues involved the interpretation and validity of the bankruptcy notice, the procedure for reviewing the orders made by the Court and Registrar, and the appropriate time extension for compliance under the Bankruptcy Act and the Federal Court (Bankruptcy) Rules.

The Court considered the arguments presented by both parties and concluded that the orders made by the Court on 13 August 2008 and the Registrar on 9 July 2008 should be vacated and set aside, respectively. The Court found that there was no order for costs in relation to the applicants’ application for review. Furthermore, the Court extended the time for compliance with the bankruptcy notice up to and including 17 September 2008, pursuant to the relevant sections of the Bankruptcy Act and the Federal Court (Bankruptcy) Rules. The applicants were required to file and serve an amended application and affidavits by 9 September 2008, while the respondent had until 16 September 2008 to file and serve any affidavits in reply. The matter was stood over before the Registrar at 9.30 am on 17 September 2008.

Orders

Orders of the court

1. The orders made by the Court on 13 August 2008 be vacated.

2. The orders made by Registrar Hedge on 9 July 2008 be set aside.

3. There be no order as to costs in relation to the applicants’ application for review.

4. Pursuant to s 41(6A) of the Bankruptcy Act 1966 (Cth) and rule 3.03 of the Federal Court (Bankruptcy) Rules 2005, the time for compliance by the applicants with the requirements of the bankruptcy notice be extended up to and including 17 September 2008.

5. The applicants file and serve an amended application and affidavits to be relied upon by them on or before 9 September 2008.

6. The respondent file and serve any affidavits in reply on or before 16 September 2008.

7. The matter be stood over before the Registrar at 9.30 am on 17 September 2008.

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

PERRAM J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: PERRAM J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 832 OF 2008

JUDGE:	PERRAM J
DATE OF ORDER:	19 AUGUST 2008
WHERE MADE:	SYDNEY

JUDGE:	PERRAM J
DATE:	19 AUGUST 2008
PLACE:	SYDNEY