Dunlop v Fishburn (No 3)

Case [2012] FCA 315

FEDERAL COURT OF AUSTRALIA

Dunlop v Fishburn (No. 3) [2012] FCA 315

Citation: Dunlop v Fishburn (No. 3) [2012] FCA 315
Appeal from: Fishburn v Dunlop [2009] FMCA 1331
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: 28 March 2012
Catchwords:

PRACTICE AND PROCEDURE – Application for extension of time to file a notice of appeal  – long delay – considerations guiding Court’s discretion to grant extension – whether acceptable explanation for the delay – further evidence – proposed appeal hopeless

BANKRUPTCY – Sequestration order – applicant claimed to have been solvent at the time the order was made – cash flow test of solvency – further evidence of debtor’s available resources and of additional debts  
Legislation: Bankruptcy Act 1966 (Cth) ss 5, 52
Federal Court of Australia Act 1976 (Cth) ss 27, 28, 37M
Federal Court of Australia Rules 2011(Cth) r 36.03
Cases cited: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424
Coulton v Holcombe (1986) 162 CLR 1
Chubb v Dunlop (2011) 254 FLR 130
Chubb v Dunlop [2011] FMCA 813
Parker v The Queen [2002] FCAFC 133
Dunlop v Fishburn [2010] FCA 1194
Dunlop v Fishburn (No. 2) [2012] FCA 314
Guss v Johnstone [2000] FCA 1455
Hall v Poolman (2007) 215 FLR 243
Jess v Scott (1986) 12 FCR 187
Keith Smith East West Transport Pty Ltd (in liq) v Australian Taxation Office (2002) 42 ACSR 501
Lewis v Doran (2004) 184 FLR 454
Optical 88 Ltd v Optical 88 Pty Ltd (2011) 197 FCR 67
Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83
SZOEC v Minister for Immigration and Citizenship [2012] FCA 129
SZQEH v Minister for Immigration and Citizenship [2012] FCA 127
Sobey v Nicol and Davies (2007) 245 ALR 389
Date of hearing: 27 March 2012
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 54
Counsel for the Applicant: Applicant did not appear.
Solicitor for the First, Second, Third and Fourth Respondents: Mr S Campbell of Fishburn Watson O'Brien
Solicitor for the Fifth Respondent: The fifth respondent appeared in person.

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 CHUBB on behalf of the trustee of the bankrupt estate of James Henry Dunlop
Fifth Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

28 MARCH 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondents’ costs.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL…

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AGLC
Dunlop v Fishburn (No 3) [2012] FCA 315
Case
[2012] FCA 315
Decision Date

CaseChat Overview and Summary

Dunlop v Fishburn (No 3) involved an application by Mr Dunlop for an extension of time to file a notice of appeal against a sequestration order, as well as a challenge to the validity of the order itself. The matter was heard in the Federal Court of Australia. The primary dispute centred around the solvency of Mr Dunlop at the time the sequestration order was issued and the adequacy of the explanation for the significant delay in lodging the notice of appeal.

The court had to determine whether the application for an extension of time should be granted, considering the length of the delay and the reasons provided for it. Additionally, the court had to assess whether Mr Dunlop could provide further evidence to support his claim of solvency at the time of the sequestration order and whether this evidence could potentially invalidate the order. The court also needed to consider whether an appeal, if permitted, would have any reasonable prospect of success.

In its decision, the court emphasised that even if Mr Dunlop could demonstrate solvency at the time of the sequestration order, this alone does not automatically necessitate the order's vacation. The court noted the discretion granted under section 28(1)(b) of the Federal Court of Australia Act, and highlighted the importance of candour in legal proceedings. The court found Mr Dunlop’s lack of candour in not disclosing the full extent of his indebtedness to be a significant factor against him. The court concluded that the delay was excessive and inadequately explained, and that any proposed appeal would likely be unsuccessful. Consequently, the application for an extension of time was dismissed, and Mr Dunlop was ordered to pay the respondents' costs.

The court's final orders were that the application be dismissed and that the applicant pay the respondents’ costs, as per Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondents’ costs.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even if Mr Dunlop could show he was solvent at the time the sequestration order was made, that, alone does not require the vacation of the order. The Court retains a discretion: FCA Act, s 28(1)(b). Mr Dunlop’s lack of candour in failing to disclose the true extent of his indebtedness counts heavily against him.Conclusion The application should be refused with costs. It would not be fair and just to accede to it. The delay has been inordinate and has not been satisfactorily explained. In any event, any appeal would be doomed to fail.

Ratio Decidendi

Legal Principle Established

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