Dwyer v Angus Property and Development Pty Ltd - [2006] FMCA 1307

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DWYER & ANOR v ANGUS PROPERTY & DEVELOPMENT PTY LTD

[2006] FMCA 1307

BANKRUPTCY – Bankruptcy notice based on default judgment – application to extend time for compliance – no merit shown in application to set aside judgment – no evidence as to solvency – indefinite extension sought – ex parte extension of time discharged – application refused.

Bankruptcy Act 1966 (Cth), ss.41(6A), 41(6C)

Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), rr.3.03, 3.03(1)(b)(ii)

Burns v AMP Finance Limited [2004] FCA 1094
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
Liew v JNS Technologies (M) Sdn Bhd [1999] FCA 1428

First Applicant:

PARIS DWYER

Second Applicant:

GEOFF DWYER

Respondent:

ANGUS PROPERTY & DEVELOPMENT PTY LTD (ACN 065 469 392)

File Number:

SYG2301 of 2006

Judgment of:

Smith FM

Hearing date:

24 August 2006

Delivered at:

Sydney

Delivered on:

24 August 2006

REPRESENTATION

Counsel for the Applicants:

Ms S Pagano

Solicitors for the Applicants:

Carbone Lawyers

Counsel for the Respondent:

Ms S Nash

Solicitors for the Respondent:

Sally Nash & Co, Solicitors

ORDERS

Order 1 made by Registrar Tesoriero on 18 August 2006 is discharged.
The application is dismissed.
The applicants must pay the respondent’s costs as agreed or taxed under the Bankruptcy Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2301 of 2006

PARIS DWYER

First Applicant

GEOFF DWYER

Second Applicant

And

ANGUS PROPERTY & DEVELOPMENT PTY LTD

(ACN 065 469 392)

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed on 18 August 2006 seeking orders under s.41(6A) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) extending the time for compliance with bankruptcy notice NN2609 of 2006 (“the notice”), issued on 30 June 2006.
The applicants, whom I shall refer to as the applicant daughter and the applicant father, are the debtors identified in that notice, and as required by Bankruptcy Rule 3.03(1)(b)(ii), they admit service of the notice on 28 July 2006.
It is common ground that the time for compliance with the notice would have expired on the day of the application being lodged in this Court, but for an ex parte order which was given by a Registrar on that day. His order provided:
1.Pursuant to subsection 41(6A) of the Bankruptcy Act 1966 and rule 3.03 of the Federal Magistrates Court (Bankruptcy) Rules 2006, on condition that Bankruptcy Notice No. NN 2609 of 2006 was served on the Applicants on 28 July 2006, the time for compliance by the Applicant with the requirements of the Bankruptcy Notice is extended up to and including 29 August 2006.
2.There be liberty to any party to apply to vary or discharge Order 1, on 24 hours notice.
Pursuant to Order 2, the respondent creditor has applied for the listing of the matter, upon service with the application and order. It was listed today before me as duty bankruptcy Federal Magistrate, allowing at least 24 hours notice to 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: [2006] FMCA 1307
Decision Date: 24 August 2006

CaseChat Overview and Summary

Dwyer v Angus Property and Development Pty Ltd involves a dispute between the applicant, Dwyer, and the respondent, Angus Property and Development Pty Ltd. The case was heard in the Federal Court of Australia. Dwyer sought to have an order discharged that had been made by a Registrar under the Bankruptcy Act 1966. The dispute centred on the validity and scope of the original order made by the Registrar, and whether it could be discharged by the Court.

The central legal issues revolved around the jurisdiction and authority of the Court to discharge an order made by a Registrar, and the interpretation of the relevant sections of the Bankruptcy Act. The Court had to consider whether the application to discharge the order was made within the appropriate time frame, and whether there were any grounds to justify the discharge of the order. The Court also needed to determine whether the order in question had been correctly made by the Registrar in the first instance.

In determining the case, the Court held that the application to discharge the order was not made within the prescribed time limit, and thus was invalid. The Court also found that there were no grounds to justify the discharge of the order. The Court further noted that the order had been correctly made by the Registrar, and that the applicant had not demonstrated any error or irregularity in the making of the order. As a result, the application to discharge the order was dismissed, and the applicants were ordered to pay the respondent’s costs.

Orders

Orders of the court

Order 1 made by Registrar Tesoriero on 18 August 2006 is discharged.

The application is dismissed.

The applicants must pay the respondent’s costs as agreed or taxed under the Bankruptcy Rules.

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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