DuluxGroup (Australia) Pty Ltd v Hado - [2020] FCCA 1077

FEDERAL CIRCUIT COURT OF AUSTRALIA

DULUXGROUP (AUSTRALIA) PTY LTD v HADO

[2020] FCCA 1077

Catchwords:
BANKRUPTCY – Registrars – Review of registrars’ decisions – time limit –extension of time

BANKRUPTCY – Proceedings in connection with sequestration – Petition and sequestration order – Hearing of creditor’s petition and form of sequestration order – Generally

Legislation:

Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), rr.2.02(3), 4.06(3)

Cases cited:

Boutros v Santa Sabina College Ltd [2011] FCA 477

Martin v Commonwealth Bank of Australia (2001) 217 ALR 634

Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132

Totev v Sfar (2008) 167 FCR 193

Wren v Mahony (1972) 126 CLR 212

Applicant:

DULUXGROUP (AUSTRALIA) PTY LTD ACN 000 049 427

Respondent:

GEORGE MATTE HADO

File Number:

BRG 14 of 2020

Judgment of:

Judge Jarrett

Hearing date:

9 April 2020

Date of Last Submission:

9 April 2020

Delivered at:

Brisbane

Delivered on:

7 May 2020

REPRESENTATION

Solicitors for the Applicant:

Rostron Carlyle Rojas Lawyers

Solicitors for the Respondent:

Joseph Burke Law Pty Ltd

ORDERS

The time within which to file an application for review of the decision of Registrar Belcher made on 20 February, 2020 is extended to 13 March, 2020.
The respondent file and serve any further affidavits upon which he intends to rely by no later than 4:00pm on 18 May, 2020.
The applicant file and serve any further affidavits upon which it intends to rely by no later than 4:00pm on 25 May, 2020.
The application for review of Registrar Belcher’s decision made on 20 February, 2020 is adjourned to 1 June, 2020 at 9:30am for hearing.
Both parties have leave to appear the hearing on 1 June, 2020 by telephone.

IT IS NOTED:

For the purpose of attending the hearing on 1 June, 2020 by telephone the following procedure must be undertaken:
(a)five (5) minutes prior to the time the matter is listed each party and legal practitioner, if any, must:
(i)dial: 1800 132 423; and
(ii)when prompted enter code: 171 991 0845#;
(b)hold the line until the name of this matter is announced in court;
(c)each participant must ensure that they and their surroundings remain totally silent until the name of this matter is announced in court.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 14 of 2020

DULUXGROUP (AUSTRALIA) PTY LTD ACN 000 049 427

Applicant

And

GEORGE MATTE HADO

Respondent

REASONS FOR JUDGMENT

On 20 February, 2020 a Registrar of this Court made a sequestration order against the estate of the respondent, who for the sake of clarity I shall refer to as the debtor. The order was entered on 20 February, 2020 but amended on 21 February, 2020 to record the correct date of the act of bankruptcy committed by the debtor.
On 24 March, 2020, the debtor applied to review the Registrar’s decision. The petitioning creditor opposes the application. The resolution of the application is not straightforward not because the underlying facts are difficult, but because there has been a failure on 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.

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Details

Case: [2020] FCCA 1077
Decision Date: 7 May 2020

CaseChat Overview and Summary

DuluxGroup (Australia) Pty Ltd sought an extension of time to file an application for review of a decision made by Registrar Belcher on 20 February 2020. The matter came before Judge Jarrett.

The primary legal issue before the court was whether to grant an extension of time for the applicant to file its application for review. The court also made directions regarding the filing of further affidavits by both parties and adjourned the substantive application for review to a later date.

Judge Jarrett granted the extension of time, allowing the applicant until 13 March 2020 to file its application for review. The court then set timelines for the parties to file and serve any further affidavits they intended to rely upon, with the respondent to file by 18 May 2020 and the applicant by 25 May 2020. The application for review was subsequently adjourned to 1 June 2020 for hearing, with both parties granted leave to appear by telephone.

Orders

Orders of the court

The time within which to file an application for review of the decision of Registrar Belcher made on 20 February, 2020 is extended to 13 March, 2020.

The respondent file and serve any further affidavits upon which he intends to rely by no later than 4:00pm on 18 May, 2020.

The applicant file and serve any further affidavits upon which it intends to rely by no later than 4:00pm on 25 May, 2020.

The application for review of Registrar Belcher’s decision made on 20 February, 2020 is adjourned to 1 June, 2020 at 9:30am for hearing.

Both parties have leave to appear the hearing on 1 June, 2020 by telephone.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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