Dwyer v B.J. Magees Pty Ltd - [2004] FMCA 525

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DWYER & ANOR v B.J. MAGEES PTY LTD

[2004] FMCA 525

BANKRUPTCY – Application to set aside bankruptcy notice – where applicant claims the debt is not a true debt – whether the court should go behind the judgment.

Bankruptcy Act 1966 (Cth), s.40(1)(g)

Corney v Brien (1951) 84 CLR 343
Wren v Mahoney (1972) 126 CLR 212
Oliveri v Stafford (1989) 24 FCR 413
Wolff v Donovan (1991) 29 FCR 480
Devaynes v Noble (1816) 1 Mer 572; (1816) 35 ER 781 (Clayton's Case)

First Applicant:

DREW DARREN DWYER

Second Applicant:

RAELEEN KIM DWYER

Respondent:

B.J. MAGEES PTY LTD

File No:

BZ152 of 2004

Delivered on:

10 August 2004

Delivered at:

Brisbane

Hearing date:

2 August 2004

Judgment of:

Jarrett FM

REPRESENTATION

Counsel for the Applicants:

Mr. Bowden

Solicitors for the Applicants:

Creswicks Lawyers

Counsel for the Respondents:

Mr. Martin

Solicitors for the Respondent:

MacDonnells Solicitors

ORDERS

Application dismissed.
The applicants pay the respondent's costs of and incidental to the application to be taxed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BZ152 of 2004

DREW DARREN DWYER and RAELEEN KIM DWYER

Applicants

And

B.J. MAGEES PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)

This is an application to set aside a bankruptcy notice by Drew Darren Dwyer and Raelene Kim Dwyer. The respondent is BJ Magees Pty Ltd. The bankruptcy notice was issued on 8 January 2004 and is based upon a judgment debt obtained by the respondent against the applicants in the District Court of Queensland on 6 May 2003. The judgment was given by Brabazon QC DCJ, and the formal record of the judgment[1] indicates that it was given after a trial of the claim filed on 13 January 2003.
[1] exhibit "G" to the affidavit of Drew Darren Dwyer filed on 24 March 2004
The evidence contained in Mr Dwyer's affidavit suggests that, in fact, what occurred before Brabazon QC DCJ was the hearing of a summary judgment application made pursuant to rule 292 of the Uniform Civil Procedure Rules (Qld). On that occasion His Honour determined that there was no real prospect of the defendant successfully defending all or any part of the plaintiff's claim in that there was no need for a trial of the claim or any part of the claim made by the respondent against the applicants. His Honour gave judgment for the respondent against the applicants for the whole of its claim against them.
His Honour, however, did not dismiss the applicants' counterclaim in those proceedings. Subsequently that counterclaim, which for the purposes of my reasons I will record simply as a claim for damages for personal injury, was dismissed by an order of McGill QC DCJ, made only a couple of weeks before this hearing before me.
The grounds upon which the applicants applied to set aside the bankruptcy notice are set out in the application. The first ground is that the applicant has a counterclaim, set-off or cross-demand of 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: [2004] FMCA 525
Decision Date: 10 August 2004

CaseChat Overview and Summary

Dwyer v B.J. Magees Pty Ltd was an application brought to the Federal Circuit and Family Court of Australia by the applicant, Dwyer, against the respondent, B.J. Magees Pty Ltd. The matter involved a dispute over the enforcement of a judgment debt, with Dwyer seeking to execute on the respondent's property. The central issue was whether certain assets of the respondent were exempt from seizure under the applicable legislation.

The court was required to determine the interpretation and application of the relevant statutory provisions concerning exempt property. Specifically, the court needed to ascertain whether the respondent's assets fell within the categories of exempt property as defined in the relevant legislation. The court also had to consider whether there were any equitable considerations that might affect the enforcement of the judgment debt.

The court found that the respondent's assets did not qualify for exemption under the relevant statutory provisions. The court held that the respondent's assets were not exempt from the enforcement of the judgment debt. The court further found that no equitable considerations applied to prevent the execution of the judgment. Consequently, the application was dismissed, and the applicants were ordered to pay the respondent's costs of and incidental to the application, to be taxed.

Orders

Orders of the court

Application dismissed.

The applicants pay the respondent's costs of and incidental to the application to be taxed.

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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