Evans v Dekkan - [2009] FCA 281

FEDERAL COURT OF AUSTRALIA
Evans v Dekkan [2009] FCA 281
Bankruptcy Act 1966 (Cth) ss 40, 43, 44, 52
VIVIAN EVANS & JOSEPH ANTOUN PRACTICISING AS UTHER WEBSTER & EVANS, SOLICITORS v BASSAM DEKKAN
NSD 1992 of 2008
JACOBSON J
24 MARCH 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1992 of 2008

BETWEEN:
VIVIAN EVANS & JOSEPH ANTOUN PRACTICISING AS UTHER WEBSTER & EVANS, SOLICITORS
Applicant

AND:
BASSAM DEKKAN
Respondent

JUDGE:

JACOBSON J

DATE OF ORDER:

24 MARCH 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.A sequestration order be made against the estate of BASSAM DEKKAN.
2.The Applicant Creditors’ costs (including any reserved costs) be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.
3.Pursuant to the Bankruptcy Regulations, the Applicant Creditors give a copy of the Sequestration Order to the Official Receiver within two days.

THE COURT NOTES:
4.That the date of the Act of Bankruptcy is 3 July 2008.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using the Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1992 of 2008

BETWEEN:
VIVIAN EVANS & JOSEPH ANTOUN PRACTICISING AS UTHER WEBSTER & EVANS, SOLICITORS
Applicant

AND:
BASSAM DEKKAN
Respondent

JUDGE:

JACOBSON J

DATE:

24 MARCH 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The applicant (“Uther Webster & Evans”) applies to the court by a creditor’s petition filed on 23 December 2008 for a sequestration order against the respondent (Mr Dekkan) under section 43 of the Bankruptcy Act1966 (Cth) (“the Act”).
The creditor’s petition is based upon judgment debts totalling $46,332.47 for legal services. The judgments were entered in the Local Court of NSW, Downing Centre Registry, on 21 December 2007.
The act of bankruptcy on which the petition is founded is the failure to comply with the bankruptcy notice NN0324/08 served on Mr Dekkan on 17 February 2008. Mr Dekkan applied to the court to set aside the Bankruptcy Notice but on 3 July 2008, I ordered that the application to set aside the bankruptcy notice be dismissed: Dekkan v Evans [2008] FCA 1004.
I am satisfied that all of the formal requirements set out in sections 43, 44 and 52(1) of the Act have been established.
Mr Dekkan appeared in person this morning to oppose the making of a sequestration order. Prior to the hearing, he filed on 18 March 2009 a document which was intended to comply with order 77, rule 2.06 of the Federal Court Rules, by setting out the grounds of opposition to the petition. Mr Dekkan also filed an affidavit sworn 18 March 2009.
The effect of what Mr Dekkan said in his grounds of opposition and affidavit, both of which were supplemented by what he said this morning, was that I ought to exercise my discretion under section…

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 Evans v Dekkan

Details

AGLC: Evans v Dekkan [2009] FCA 281
Case: [2009] FCA 281
Decision Date: 24 March 2009

CaseChat Overview and Summary

Evans v Dekkan is a case involving the Applicant Creditors, who are seeking a sequestration order against the estate of Bassam Dekkan, the Respondent Debtor. The Applicant Creditors have presented the court with evidence of debt owed by the Respondent Debtor, and are requesting the court to declare the Respondent Debtor bankrupt and to appoint a trustee to manage the estate of the Respondent Debtor. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the Applicant Creditors had provided sufficient evidence to support the issuance of a sequestration order against the estate of the Respondent Debtor. The court needed to determine whether the Applicant Creditors had proved the existence of the debt and that the debt remained unpaid. The court also needed to consider the Respondent Debtor's defence, if any, and whether it was sufficient to prevent the issuance of a sequestration order.

The court found that the Applicant Creditors had provided sufficient evidence to support the issuance of a sequestration order against the estate of the Respondent Debtor. The court noted that the debt was undisputed and that the Respondent Debtor had not provided any evidence to dispute the existence of the debt or to demonstrate that it had been paid. The court also found that the Respondent Debtor's defence was not sufficient to prevent the issuance of a sequestration order. Accordingly, the court made a sequestration order against the estate of the Respondent Debtor, ordered that the Applicant Creditors' costs be paid from the estate of the Respondent Debtor, and directed that a copy of the Sequestration Order be given to the Official Receiver within two days.

Orders

Orders of the court

1. A sequestration order be made against the estate of BASSAM DEKKAN.

2. The Applicant Creditors’ costs (including any reserved costs) be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.

3. Pursuant to the Bankruptcy Regulations, the Applicant Creditors give a copy of the Sequestration Order to the Official Receiver within two days.

THE COURT NOTES:

4. That the date of the Act of Bankruptcy is 3 July 2008.

Note:

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

JACOBSON J

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Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1992 of 2008

BETWEEN:	VIVIAN EVANS & JOSEPH ANTOUN PRACTICISING AS UTHER WEBSTER & EVANS, SOLICITORS Applicant
AND:	BASSAM DEKKAN Respondent

JUDGE:	JACOBSON J
DATE OF ORDER:	24 MARCH 2009
WHERE MADE:	SYDNEY

JUDGE:	JACOBSON J
DATE:	24 MARCH 2009
PLACE:	SYDNEY