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Dudzinski v Kellow

Dudzinski v Kellow

Case [2003] FCAFC 207 5 September 2003

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FEDERAL COURT OF AUSTRALIA
Dudzinski v Kellow [2003] FCAFC 207
BANKRUPTCY – appeal from sequestration order – whether fraud collusion or bias – whether denial of natural justice – whether bankruptcy notice valid - whether amount of judgment debt owing – whether court go behind judgment where challenge validity of bankruptcy notice dismissed and appeal unsuccessful – where court go behind certificate of taxation – whether bankruptcy notice founded on more than one judgment – whether counterclaim, set off or cross demand – whether service of petition – whether petition can be signed by a solicitor on behalf of petitioning creditors – whether affidavit verifying petition states whether an application has been made to set aside bankruptcy notice or extend time for compliance and whether decided – whether formalities of sequestration order complied with.
PRACTICE & PROCEDURE – whether notice of appeal may be amended.
PRACTICE & PROCEDURE – where adjournment sought.
PRACTICE & PROCEDURE – whether leave be given to lead further evidence on appeal by way of cross-examination.
Bankruptcy Act 1966 (Cth) – ss 40(1)(g), 44, 47(1A), s 52, 52(1), 52(1)(b), 52(2), 52(2)(a), 52(2)(b), 86
Federal Court of Australia Act 1976 (Cth) – s 43
Federal Court Rules – O 20 r 2, O 52 r 21(1), O 52 r 36, O 62 r 6(3)(d), O 62 r 40, O 62 r 46, O 77 r 16(1), O 77 r 18, O 77 r 18(3), O 77 r 21
Makhoul v Barnes (1995) 60 FCR 572 cited
Australian Workers’ Union & Ors v Bowen (1946) 72 CLR 575 cited
Owners of Strata Plan No 5459 v Mason & Anor (1999) 91 FCR 92 cited
Stec v Orfanos [1999] FCA 457 cited
Gye v McIntyre (1990-1991) 171 CLR 609 cited
Day & Dent Constructions Pty Ltd (In Liquidation) v North Australian Properties Pty Ltd (Provisional Liquidator Appointed) (1981) 34 ALR 595 cited
House v The King (1936) 55 CLR 499 cited
Australia & New Zealand Banking Group Ltd v Hubner [1999] FCA 1346 cited
WALDEMAR DUDZINSKI v AYNSLEY KELLOW, ROY RICKSON, ERROL STOCK, BILL HOGARTH, CORDIA CHU, KEES HULSMAN, LYN HOLMAN, COLIN McANDREW, JOHN SCOTT AND GRIFFITH UNIVERSITY
Q 31 OF 2003
WHITLAM, KIEFEL AND DOWSETT JJ
5 SEPTEMBER 2003
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 31 OF 2003

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

WALDEMAR DUDZINSKI
APPELLANT

AND:

AYNSLEY KELLOW
FIRST RESPONDENT

ROY RICKSON
SECOND RESPONDENT

ERROL STOCK
THIRD RESPONDENT

BILL HOGARTH
FOURTH RESPONDENT

CORDIA CHU
FIFTH RESPONDENT

KEES HULSMAN
SIXTH RESPONDENT

LYN HOLMAN
SEVENTH RESPONDENT

COLIN McANDREW
EIGHTH RESPONDENT

JOHN SCOTT
NINTH RESPONDENT

GRIFFITH UNIVERSITY
TENTH RESPONDENT

JUDGES:

WHITLAM, KIEFEL AND DOWSETT JJ

DATE OF ORDER:

5 SEPTEMBER 2003

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The appellant have leave to amend the notice of appeal filed 17 March 2003 in terms of the supplementary notice of appeal received by the Queensland Registry on 4 June 2003.

2. The application for an adjournment be refused.
3.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 Dudzinski v Kellow

Details

AGLC: Dudzinski v Kellow [2003] FCAFC 207
Case: [2003] FCAFC 207
Decision Date: 5 SEPTEMBER 2003

CaseChat Overview and Summary

Dudzinski v Kellow involved a dispute between the appellant, Dudzinski, and the respondents, Kellow, with the matter being heard in the Queensland Court of Appeal. The primary dispute centred on the validity of an appeal notice and the subsequent request for additional evidence and an adjournment. The appellant sought leave to amend the original notice of appeal, file supplementary evidence, and postpone the hearing.

The court was tasked with determining whether the appellant's request to amend the notice of appeal was permissible and if the supplementary evidence and adjournment should be allowed. Additionally, the court had to assess the merits of the appeal itself and decide on the appropriate costs.

The Queensland Court of Appeal found that the amendment to the notice of appeal was acceptable, but the request for further evidence and an adjournment was denied. The court emphasised the importance of adhering to procedural requirements and the principle that appeals should not be used to introduce new evidence or arguments. The court dismissed the appeal on the basis that the appellant's arguments did not warrant a reversal of the lower court's decision. Consequently, the court ordered the appellant to pay the respondents' costs associated with the appeal.

Orders

Orders of the court

1. The appellant have leave to amend the notice of appeal filed 17 March 2003 in terms of the supplementary notice of appeal received by the Queensland Registry on 4 June 2003.

2. The application for an adjournment be refused.

3. The application to lead further evidence by way of cross-examining Mr E Goodwin and Mr C McAndrew be refused.

4. The appeal be dismissed.

5. The appellant pay the respondents’ costs of the appeal.

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

WHITLAM, KIEFEL AND DOWSETT JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WHITLAM, KIEFEL AND DOWSETT JJ

Full text does not contain this section.

Citations

AGLC Citation

Dudzinski v Kellow [2003] FCAFC 207

Most Recent Citation

Rookharp Pty Limited v Webb & Anor [2011] FMCA 801

Cases citing this decision · 6 of 6 shown

Thorne ATF Thorne Family Trust v Ozibar Pty Ltd ATF Ozibar Unit Trust
[2017] FCCA 3273 Para 1

…As the applicant points out, the cases on this point were reviewed in Dudzinski v Kellow [2003] FCAFC 207, Scook v Sims Construction Pty Ltd (2004) 3 ABC(NS) 43 and Rookharp Pty Ltd v Webb (2011) 254 FLR 410.…
Devren Pty Ltd v Miller
[2016] FCCA 1194 Para 15

…Zealand Banking Group Ltd v Hubner [1999] FCA 1346, applied in Dudzinski v Kellow [2003] FCA 103 at [49] and approved on appeal in Dudzinski v Kellow [2003] FCAFC 207 at [44] and [47]). There is no evidence of the authority given or purportedly given to the solicitor to sign the present petition. That is unsurprisi…
Smits v Lillas and Loel Lawyers
[2015] FCCA 1092 Para 6

…Australian Workers’ Union v Bowen has been followed on a number of occasions, including Dudzinski v Kellow [2003] FCAFC 207 and Scook v Sims Construction Pty Ltd [2004] FCAFC 306. What is apparent from those decisions, however, is that it is necessary to analyse the order pursuant to which the judgment creditors ar…
Michalakas v Stuttgart Pty Ltd
[2013] FMCA 225 Para 1

…udgment creditors (see Australian Workers Union & Ors v Bowen (1946) 72 CLR 575 at 583 and 590; Wilson v Hambrook [2009] FMCA 991; Dudzinski v Kellow [2003] FCAFC 207; Scook v Sims Construction Pty Ltd (2004) 3 ABC (NS) 43; [2004] FCAFC 306).…
Rookharp Pty Limited v Webb & Anor
[2011] FMCA 801 Para 6

…It was pointed out that Bowen had been followed in relatively recent decisions of the Full Court of the Federal Court. In Dudzinski v Kellow [2003] FCAFC 207 the Full Court dismissed an appeal from a sequestration order. The grounds of appeal included contentions that the petition was not signed by the creditors bu…
Scook v Sims Construction Pty Ltd
[2004] FCAFC 306 Para 6

…me of the judgment creditors is invalid. The authority has been regularly followed and was recently applied by the Full Court in Dudzinski v Kellow [2003] FCAFC 207. The respondent does not contest the effect of the authority or submit that it was not followed in the formulation of the bankruptcy notice relevant to…

View all 6 citing cases →

Cases cited in this decision · 9 of 9 shown

Australia & New Zealand Banking Group Ltd v Hubner
[1999] FCA 1346 Para 21

…rs. Spender J rejected this argument, citing an earlier decision of his own in that regard, namely Australia & New Zealand Banking Group Ltd v Hubner [1999] FCA 1346 at [38]. Subsection 47(1A) requires that a petition be in any form prescribed by the rules of court. Order 77 subrule 16(1) provides that a petition…
Owners of Strata Plan No 5459 v Mason
[1999] FCA 1137 Para 1

…efore cannot found a bankruptcy petition. This argument may owe something to the decision of Emmett J in Owners of Strata Plan No 5459 v Mason & Anor (1999) 91 FCR 92. His Honour held that the amounts of two judgment debts cannot be claimed in one bankruptcy notice. The appellant suggests that the present judgment…
Stec v Orfanos
[1999] FCA 457 Para 2

…s demand for the purposes of par 40(1)(g) of the Bankruptcy Act because such claims were against only some of the joint creditors. See Stec v Orfanos [1999] FCA 457 at par 24. The appellant now seeks to raise the same argument in opposing the sequestration order. Although he was not specific, we assume that the a…
Makhoul v Barnes
[1995] FCA 953

…, O 52 r 21(1), O 52 r 36, O 62 r 6(3)(d), O 62 r 40, O 62 r 46, O 77 r 16(1), O 77 r 18, O 77 r 18(3), O 77 r 21 Makhoul v Barnes (1995) 60 FCR 572 cited Australian Workers’ Union & Ors v Bowen (1946) 72 CLR 575 cited Owners of Strata Plan No 5459 v Mason & Anor (1999) 91 FCR 92 cited Stec v Orfanos [1999] FCA 457 cited…
Gye v McIntyre
[1991] HCA 60 Para 6

…The appellant refers in support of this argument to the decision of the High Court in Gye v McIntyre (1990-1991) 171 CLR 609 and that of the Full Court of this Court in Day & Dent Constructions Pty Ltd (In Liquidation) v North Australian Properties Pty Ltd (Provisional Liquidator Appointed) (1981) 34 ALR 595.…
Day & Dent Constructions Pty Ltd (In Liquidation) v North Australian Properties Pty Ltd (Provisional Liquidator Appointed)
[1981] FCA 37 Para 6

…ull Court of this Court in Day & Dent Constructions Pty Ltd (In Liquidation) v North Australian Properties Pty Ltd (Provisional Liquidator Appointed) (1981) 34 ALR 595. Both cases concerned the proper construction of s 86 of the Bankruptcy Act . There is no apparent reason for applying them to the present case. At o…
House v R
[1936] HCA 40 Para 13

…s discretion accordingly. The proper approach by an appellate court to an appeal from the exercise of a discretion is to be found in House v The King (1936) 55 CLR 499 at 504-505. We can detect no error in his Honour’s decision to make the sequestration order. HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION…
Australian Workers' Union v Bowen
[1946] HCA 24 Para 19

…an $2,000. Where a debt is owed to more than one creditor jointly, all must present the petition. See Australian Workers’ Union & Ors v Bowen (1946) 72 CLR 575. Section 52 provides relevantly as follows: “(1) At the hearing of a creditor’s petition, the Court shall require proof of: (a) the matters stated in the pet…
House v The King
63 WN 176 Para 13

…and exercised his discretion accordingly. The proper approach by an appellate court to an appeal from the exercise of a discretion is to be found in House v The King (1936) 55 CLR 499 at 504-505. We can detect no error in his Honour’s decision to make the sequestration order. HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION…

Legislation cited in this decision · 2

Bankruptcy Act 1966 (Cth)
1 mention (from Para 19)
Federal Court of Australia Act 1976 (Cth)
1 mention

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 31 OF 2003

BETWEEN:	WALDEMAR DUDZINSKI APPELLANT
AND:	AYNSLEY KELLOW FIRST RESPONDENT ROY RICKSON SECOND RESPONDENT ERROL STOCK THIRD RESPONDENT BILL HOGARTH FOURTH RESPONDENT CORDIA CHU FIFTH RESPONDENT KEES HULSMAN SIXTH RESPONDENT LYN HOLMAN SEVENTH RESPONDENT COLIN McANDREW EIGHTH RESPONDENT JOHN SCOTT NINTH RESPONDENT GRIFFITH UNIVERSITY TENTH RESPONDENT
JUDGES:	WHITLAM, KIEFEL AND DOWSETT JJ
DATE OF ORDER:	5 SEPTEMBER 2003
WHERE MADE:	BRISBANE