Dubow v Barnden - [2013] FCA 578

FEDERAL COURT OF AUSTRALIA
Dubow v Barnden FCA [2013] FCA 578

Citation: Dubow v Barnden [2013] FCA 578

Parties: YOLANDE VICTORIA FRANCES DUBOW v ANDREW BARNDEN

File number: QUD 279 of 2013

Judge: GREENWOOD J

Date of judgment: 12 June 2013

Catchwords: BANKRUPTCY – Consideration of an application for an injunction restraining the sale of a property by the Trustee of the applicant

Legislation: Bankruptcy Act 1966 (Cth), ss 55, 58, 60, 116, 153B, 154, 181A
Bankruptcy Regulations1996 (Cth)
Federal Court of Australia Act 1976 (Cth)

Cases cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Dubow v Official Receiver & Anor [2013] FMCA 217
Grundy v Wattyl Australia [2002] FCA 615
Hollier v Australian Maritime Safety Authority [1998] FCA 428
Orion Property Trust Ltd v Du Cane Court Ltd [1962] 1 WLR 1085
Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65
Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87

Date of hearing: 11 June 2013

Date of last submissions: 11 June 2013

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 36

Applicant Appearing in person

Counsel for the Respondent Mr D C Eardley

Solicitors for the Respondent Diamond Conway Solicitors

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 279 of 2013

BETWEEN:
YOLANDE VICTORIA FRANCES DUBOW
Applicant

AND:
ANDREW BARNDEN
Respondent

JUDGE:

GREENWOOD J

DATE OF ORDER:

12 JUNE 2013

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application for an interlocutory injunction restraining the respondent from selling the Katoomba property as described in the reasons for judgment is dismissed.
2.The application of the applicant is otherwise adjourned generally.
3.The respondent is directed, for the purposes of the administration of the estate of the applicant as follows: in the event that the respondent effects a sale of the Katoomba property, the proceeds of sale after the payment of the costs and expenses of the sale and the discharge of any amounts payable to a registered mortgagee (the residual funds) upon settlement, are to be held by the Trustee pending further direction as to the application and distribution of any of those funds.
4.Any application for direction as to the distribution of any part of the residual funds at any time prior to the determination of the appeal may be made on 7 days notice to the applicant.
5.The costs of the application are reserved.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

QUD 279 of 2013

BETWEEN:
YOLANDE VICTORIA FRANCES DUBOW
Applicant

AND:
ANDREW BARNDEN
Respondent

JUDGE:

GREENWOOD J

DATE:

12 JUNE 2013

PLACE:

BRISBANE

REASONS FOR JUDGMENT

These proceedings concern an Interlocutory Application made by Ms Yolande Dubow in which she seeks an injunction pending the determination of an appeal to this Court from Orders of the Federal Magistrates Court of Australia (as it was then known) dismissing her application…

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 Dubow v Barnden

Details

AGLC: Dubow v Barnden [2013] FCA 578
Case: [2013] FCA 578
Decision Date

CaseChat Overview and Summary

The case of Dubow v Barnden involved an application by Yolande Victoria Frances Dubow, the applicant, for an interlocutory injunction to restrain Andrew Barnden, the respondent and Trustee of her estate in bankruptcy, from selling a property located at Katoomba. The application was made in the context of an appeal to the Federal Court from a decision of the Federal Magistrates Court dismissing Ms Dubow’s application to annul her bankruptcy. Ms Dubow sought the injunction on the basis that if the property were sold, any proceeds would be lost to her, and any appeal she might have would be rendered nugatory. The court had to determine whether there was an arguable point raised on the proposed appeal and where the balance of convenience lay.

The court found that while there was a real prospect that the property might be sold by the Trustee before the determination of the appeal, Ms Dubow had not demonstrated an arguable point in relation to any of her other contentions. The court did not find it appropriate to grant the injunction but made a direction that upon the sale of the property, and after the payment of the costs and expenses of the sale and the discharge of the interest of any registered mortgagee, the balance of the proceeds be held by the Trustee pending further direction by the Court as to the application of any of those funds pending the determination of the appeal. Any application by the Trustee could be made upon seven days' notice to Ms Dubow.

The court dismissed the application for an interlocutory injunction and made a direction in relation to the proceeds of sale of the property. The costs of the application were reserved.

Orders