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Dunlop v Fishburn

Dunlop v Fishburn

Case [2011] FCA 1194 21 October 2011

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FEDERAL COURT OF AUSTRALIA
Dunlop v Fishburn [2011] FCA 1194

Citation: Dunlop v Fishburn [2011] FCA 1194

Parties: JAMES HENRY DUNLOP v MICHAEL GEORGE FISHBURN, JOHN JAMES WATSON, CHRISTOPHER MARTIN O’BRIEN, SAMUEL BOYD COUPER AND MORGAN JAMES CHUBB AS TRUSTEE OF THE BANKRUPT ESTATE OF JAMES HENRY DUNLOP

File number(s): NSD 1686 of 2011

Judge: KATZMANN J

Date of judgment: 21 October 2011

Catchwords:
PRACTICE AND PROCEDURE – Application for stay of proceedings before application for an extension of time to file notice of appeal – writ of possession about to be executed – whether power to stay proceedings before appeal instituted – s 25 of the Federal Court of Australia Act 1976 (Cth) – considerations relevant to the exercise of discretion to grant stay

BANKRUPTCY – Sequestration order – question of solvency

Legislation: Bankruptcy Act 1966 (Cth) ss 37(2), 52(3)
Federal Court of Australia Act 1976 (Cth) ss 25(2B)(ab), (2BA), 29
Federal Court Rules 1979 O 52 r 15(1)(a)
Federal Court Rules2011 rr 1.34, 9.05
Federal Magistrates Court Rules 2001 r 16.05(2)(a)

Cases cited:
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Australian Workers Union v Pilkington (Aust) Ltd (2000) 101 FCR 35
Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460
Chubb v Dunlop [2011] FMCA 813

Cirillo v Consolidated Press Property Pty Ltd (formerly known as Citicorp Australia Limited) [2007] FCAFC 167

Fishburn v Dunlop [2009] FMCA 1331
Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374
Keith Smith East West Transport Pty Ltd v Australian Taxation Office [2002] NSWCA 264
Shirreff v Beck Legal Pty Ltd (2010) 119 ALD 284
Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87

Date of hearing: 19 October 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 31

Solicitor for the Applicant: Ms J Tangsilsat of Thai-Oz Solicitor & Migration Services

Solicitor for the First, Second, Third and Fourth Respondents: Mr S Campbell of Fishburn Watson O’Brien

Solicitor for the Fifth Respondents: Mr J Gardner

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1686 of 2011

BETWEEN:
JAMES HENRY DUNLOP
Applicant

AND:
MICHAEL GEORGE FISHBURN
First Respondent

JOHN JAMES WATSON
Second Respondent

CHRISTOPHER MARTIN O’BRIEN
Third Respondent

SAMUEL BOYD COUPER
Fourth Respondent

MORGAN JAMES CHUBB as trustee of the bankrupt estate of James Henry Dunlop
Fifth Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

21 OCTOBER 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Morgan James Chubb as trustee of the bankrupt estate of James Henry Dunlop be joined as fifth respondent pursuant to r 9.05 of the Federal Court Rules 2011 (Cth).
2.The interlocutory application filed on 14 October 2011 be dismissed.
3.The applicant pay the respondents’ costs.
4.The applicant file and serve any further evidence in support of his application filed on 30 September 2011 for an extension of time within which to file a notice of appeal (“the application”) on or before 20 November…

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 Dunlop v Fishburn

Details

AGLC: Dunlop v Fishburn [2011] FCA 1194
Case: [2011] FCA 1194
Decision Date: 21 October 2011

CaseChat Overview and Summary

The case of Dunlop v Fishburn involves an application by the appellant, James Henry Dunlop, to the Federal Court of Australia seeking a stay of proceedings in relation to a writ of possession which was about to be executed. The respondents, Fishburn and others, opposed the application. The dispute centres on the appellant's ability to stay the proceedings before the appeal is formally instituted and the timing of the application for an extension of time to file a notice of appeal. The appellant's application for an extension of time had already been refused by the Court. The legal issues before the court involved determining whether the power to stay proceedings existed before an appeal was instituted, and if so, what considerations were relevant to the exercise of that discretion under section 25 of the Federal Court of Australia Act 1976 (Cth).

The court considered the relevant statutory provisions and case law, focusing on the timing and appropriateness of the application for a stay. It was noted that an application for a stay before the appeal is instituted is an interlocutory matter and the court must consider whether the stay would be just in all the circumstances. The court found that the appellant had not demonstrated a sufficient basis for the exercise of the court's discretion to grant a stay. The timing of the application, coming shortly after the refusal of an earlier application for an extension of time, was also considered. The court held that the application did not meet the threshold for a stay, given the imminent execution of the writ of possession and the lack of a compelling reason to halt the proceedings.

The court dismissed the interlocutory application and ordered that the appellant pay the respondents' costs. The court also set a deadline for the appellant to file and serve any further evidence in support of his application for an extension of time, and for the respondents to file and serve any evidence in reply. The application for an extension of time was to be listed for a hearing on a date to be fixed with the associate, and the parties were granted liberty to apply on 24 hours' notice. The court’s decision emphasised the importance of timely and justified applications in interlocutory proceedings and the need for a strong basis to warrant a stay of execution.

Orders

Orders of the court

1. Morgan James Chubb as trustee of the bankrupt estate of James Henry Dunlop be joined as fifth respondent pursuant to r 9.05 of the Federal Court Rules 2011 (Cth).

2. The interlocutory application filed on 14 October 2011 be dismissed.

3. The applicant pay the respondents’ costs.

4. The applicant file and serve any further evidence in support of his application filed on 30 September 2011 for an extension of time within which to file a notice of appeal (“the application”) on or before 20 November 2011.

5. The respondents file and serve any evidence in reply on or before 27 November 2011.

6. The application be listed for hearing on a date to be fixed with my associate.

7. Liberty to the parties to apply on 24 hours’ notice.

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

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

Dunlop v Fishburn [2011] FCA 1194

Most Recent Citation

Dunlop v Fishburn (No. 2) [2012] FCA 314

Cases citing this decision · 4 of 4 shown

James v Owners Strata Plan No 14274 (Formerly Woollahra Constructions Pty Ltd)
[2013] FCA 1257 Para 17

…ng delay in dealing with any question concerning the making of a sequestration order.” Similar sentiments were expressed in Dunlop v Fishburn [2011] FCA 1194.…
Gujarat NRE Coke Limited v Coeclerici Asia (Pte) Ltd
[2013] FCA 918 Para 21

…um Ltd (1986) 160 CLR 220 at 222‑3 per Dawson J. See, for example, Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 693‑695; Dunlop v Fishburn (2011) 284 ALR 482 at [17].…
Dunlop v Fishburn (No 3)
[2012] FCA 315 Para 5

…to rescind, discharge or suspend the operation of a sequestration order: Chubb v Dunlop [2011] FMCA 813. (I refused the stay ( Dunlop v Fishburn [2011] FCA 1194)…
Dunlop v Fishburn (No. 2)
[2012] FCA 314 Para 7

…ation, and stood the application for extension of time over to a date to be fixed. Two days later I dismissed the stay application: Dunlop v Fishburn [2011] FCA 1194. At the same time I made orders for the filing and service of any further evidence in support of the application for an extension of time, anticipati…

View all 4 citing cases →

Cases cited in this decision · 11 of 11 shown

Chubb v Dunlop
[2011] FMCA 813 Para 6

…o have the orders made on 27 July 2011 set aside and to stay the writ of possession. The federal magistrate dismissed the application: Chubb v Dunlop [2011] FMCA 813. His Honour said that the evidence raised no valid ground of opposition, and so there was no sufficient basis for him to exercise his discretion to s…
Shirreff v Beck Legal Pty Ltd
[2010] FMCA 697 Para 15

…For completeness, I should note that in Shirreff v Beck Legal Pty Ltd (2010) 119 ALD 284 Dodds-Streeton J queried (but did not decide) whether, despite the power to order a stay pending an appeal conferred by s 29 of the FCA Act, the power to stay proceedings under a sequestration order is limited to the 21 day period under s 52(3) of…
Fishburn v Dunlop
[2009] FMCA 1331 Para 2

…e Bankruptcy Act 1966 (Cth), to enable Mr Dunlop to focus clearly on his financial situation “and to consider his options”. See Fishburn v Dunlop [2009] FMCA 1331.…
Cirillo v Consolidated Press Property Pty Ltd (formerly known as Citicorp Australia Limited)
[2007] FCAFC 167 Para 28

…v Commonwealth Bank of Australia (1996) 134 ALR 460; and Cirillo v Consolidated Press Property Pty Ltd (formerly known as Citicorp Australia Limited) [2007] FCAFC 167 at [51]. I reject Ms Tangsilsat’s submission that a stay would not disadvantage the creditors. They have been waiting now for years. In relative term…
Keith Smith East West Transport Pty Ltd (in liq) v Australian Taxation Office
[2002] NSWCA 264 Para 19

…t otherwise the person is insolvent. The test of solvency is the cash flow test: Keith Smith East West Transport Pty Ltd v Australian Taxation Office [2002] NSWCA 264 at [33]. (This was a case involving s 95A of the Corporations Act 2001 (Cth) but the statutory definition is essentially the same as the definition i…
Australian Workers' Union v Pilkington (Aust) Ltd
[2000] FCA 1169 Para 17

…nugatory. (d)Where the balance of convenience lies. See, for example, Alexander at 694; and Australian Workers Union v Pilkington (Aust) Ltd (2000) 101 FCR 35 at [30]-[31] per Finkelstein J.…
Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc
[2000] FCA 660 Para 14

…for an extension of time is plainly an interlocutory order. If any authority is required, see Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374.…
Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2)
[2000] FCA 87 Para 17

…of authority in this Court does not require special or exceptional circumstances: Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87 at [13]-[14]. Still, there is an onus on the applicant to demonstrate a proper basis for a stay. As the mere filing of an appeal will not suffice ( Ale…
Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc
[1998] FCA 1640 Para 14

…Nevertheless, s 25(2B)(ab) confers a power on a single Judge or Full Court to make an interlocutory order pending the determination of an appeal. Subsection (2BA) provides that a reference to an appeal in subsection (2B) includes a reference to an application of the kind mentioned in subsection (2).…
Bryant v Commonwealth Bank of Australia
[1996] HCA 3 Para 28

…rticularly unsecured creditors, and the community, which is also concerned with the due administration of the estate of a bankrupt. See, for example, Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460; and Cirillo v Consolidated Press Property Pty Ltd (formerly known as Citicorp Australia Limited) [2007] FCAFC 167 at [51]. I reject Ms T…
Alexander v Cambridge Credit Corporation Ltd
(1987) 9 NSWLR 310 Para 17

…at [13]-[14]. Still, there is an onus on the applicant to demonstrate a proper basis for a stay. As the mere filing of an appeal will not suffice ( Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 (“ Alexander ”) at 694), it follows that the mere filing of an application to extend the time to appeal cannot. The following consideration…

Legislation cited in this decision · 6

Bankruptcy Act 1966 (Cth)
37(2), 52(3) 3 mentions (from Para 2)
Federal Court of Australia Act 1976 (Cth)
25(2B)(ab), 29 3 mentions (from Para 11)
Federal Court Rules 2011 (Cth)
1.34, 9.05 3 mentions (from Para 8)
Corporations Act 2001 (Cth)
1 mention (from Para 19)
Federal Court Rules 1979 (Cth)
1 mention (from Para 3)
Federal Magistrates Court Rules 2001 (Cth)
16.05(2)(a) 1 mention (from Para 6)

Citation:		Dunlop v Fishburn [2011] FCA 1194
Parties:		JAMES HENRY DUNLOP v MICHAEL GEORGE FISHBURN, JOHN JAMES WATSON, CHRISTOPHER MARTIN O’BRIEN, SAMUEL BOYD COUPER AND MORGAN JAMES CHUBB AS TRUSTEE OF THE BANKRUPT ESTATE OF JAMES HENRY DUNLOP
File number(s):		NSD 1686 of 2011
Judge:		KATZMANN J
Date of judgment:		21 October 2011
Catchwords:		PRACTICE AND PROCEDURE – Application for stay of proceedings before application for an extension of time to file notice of appeal – writ of possession about to be executed – whether power to stay proceedings before appeal instituted – s 25 of the Federal Court of Australia Act 1976 (Cth) – considerations relevant to the exercise of discretion to grant stay BANKRUPTCY – Sequestration order – question of solvency
Legislation:		Bankruptcy Act 1966 (Cth) ss 37(2), 52(3) Federal Court of Australia Act 1976 (Cth) ss 25(2B)(ab), (2BA), 29 Federal Court Rules 1979 O 52 r 15(1)(a) Federal Court Rules2011 rr 1.34, 9.05 Federal Magistrates Court Rules 2001 r 16.05(2)(a)
Cases cited:		Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Australian Workers Union v Pilkington (Aust) Ltd (2000) 101 FCR 35 Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460 Chubb v Dunlop [2011] FMCA 813 Cirillo v Consolidated Press Property Pty Ltd (formerly known as Citicorp Australia Limited) [2007] FCAFC 167 Fishburn v Dunlop [2009] FMCA 1331 Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 3) (1998) 86 FCR 374 Keith Smith East West Transport Pty Ltd v Australian Taxation Office [2002] NSWCA 264 Shirreff v Beck Legal Pty Ltd (2010) 119 ALD 284 Stirling Harbour Services Pty Ltd v Bunbury Port Authority (No 2) [2000] FCA 87
Date of hearing:	19 October 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	31
Solicitor for the Applicant:	Ms J Tangsilsat of Thai-Oz Solicitor & Migration Services
Solicitor for the First, Second, Third and Fourth Respondents:	Mr S Campbell of Fishburn Watson O’Brien
Solicitor for the Fifth Respondents:	Mr J Gardner

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1686 of 2011

JUDGE:	KATZMANN J
DATE OF ORDER:	21 OCTOBER 2011
WHERE MADE:	SYDNEY