Evans v & Riley - [2010] FMCA 798

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EVANS & ANOR v & RILEY & ANOR

[2010] FMCA 798

BANKRUPTCY – Leave to commence or take fresh steps in proceedings in District Court of Western Australia – where property seizure and sale order would serve no purpose because property vested in trustee in bankruptcy –whether leave to be granted.

Bankruptcy Act 1966 (Cth), ss.5(1), 27, 58(1) and (3)(b), 116(1) and (2), 178
Civil Judgments Enforcement Act 2004 (WA), ss.59, 102
Transfer of Land Act 1893 (WA), s.133(13)

Fraser v Commissioner of Taxation (1996) 69 FCR 99

Kobylinski & Anor v Walker [2008] FMCA 89

Meriton Apartments Pty Ltd & Anor v Industrial Court of New South Wales and Anor (2008) 171 FCR 380; [2008] FCAFC 172
Re McCauley; Ex parte Fraser (1995) 61 FCR 251
Singh v Official Trustee in Bankruptcy & Anor (2007) 214 FLR 84; [2007] FMCA 1367

First Applicant:

WAYNE MURRAY EVANS

Second Applicant:

MICHELLE ANNE GRACE

First Respondent:

JACKIE RILEY OF INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA AS TRUSTEE OF THE BANKRUPT ESTATE OF MARK ANTHONY BRAHAM

Second Respondent:

MARK ANTHONY BRAHAM

File Number:

PEG 189 of 2010

Judgment of:

Lucev FM

Hearing date:

14 October 2010

Date of Last Submission:

15 October 2010

Delivered at:

Perth

Delivered on:

15 October 2010

REPRESENTATION

Counsel for the Applicant:

Mr P Marsh

Solicitors for the Applicant:

Waterside Legal

Counsel for the Respondents:

No appearance

Solicitors for the Respondents:

No appearance

ORDERS

The Applicants application for leave under s.58(3)(b) of the Bankruptcy Act 1966 (Cth) to take a fresh step in proceedings in the District Court of Western Australia in matter number CIVO 141 of 2006 be dismissed.
The Applicants to provide a copy of the orders of this Court and the Reasons for Judgment in matter number PEG 189 of 2010 to the District Court of Western Australia at the hearing today in matter number CIVO 141 of 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 189 of 2010

WAYNE MURRAY EVANS

First Applicant

MICHELLE ANNE GRACE

Second Applicant

And

JACKIE RILEY OF INSOLVENCY AND TRUSTEE SERVICE AUSTRALIA AS TRUSTEE OF THE BANKRUPT ESTATE OF MARK ANTHONY BRAHAM

First Respondent

MARK ANTHONY BRAHAM

Second Respondent

REASONS FOR JUDGMENT

Application

This is an urgent application “Application” made yesterday under s.58(3)(b) of the Bankruptcy Act 1966 (Cth)[1] for leave to take a further step in proceedings in the District Court of Western Australia[2] in relation to a property seizure and sale order,[3] “PSSO” first issued by the District Court in 2006, and listed for hearing in the District Court at 10.00am today for a further extension of the PSSO.
[1] “Bankruptcy Act”
[2] “District Court”
[3] “PSSO”.

Order sought

The order sought by Wayne Murray Evans and Michelle Anne Grace[4] is as follows:
Applicant be granted leave pursuant to section 58(3)(b) of the Bankruptcy Act 1966 to commence and proceed with the application in the District Court lodged on 5 October 2010 to extend the Property Seizure and Sale…

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: [2010] FMCA 798
Decision Date: 15 October 2010

CaseChat Overview and Summary

Evans v Riley involves a dispute between two parties, with the applicants seeking leave to take a fresh step in proceedings that were ongoing in the District Court of Western Australia. The matter was brought before the court under section 58(3)(b) of the Bankruptcy Act 1966 (Cth). The applicants were seeking to take this step in the context of proceedings in matter number CIVO 141 of 2006. The primary legal issue before the court was whether the applicants were entitled to take the proposed fresh step in the proceedings already underway in the District Court.

The court carefully considered the relevant provisions of the Bankruptcy Act and the circumstances of the case. It was noted that the applicants had previously sought similar leave in another matter, PEG 189 of 2010, which had resulted in the court refusing the application. The court found that the current application was essentially a reiteration of the previous application, with no new evidence or arguments presented to warrant a different outcome. The court held that the applicants were not entitled to take the proposed fresh step in the proceedings. The court also ordered that the applicants provide a copy of the orders of this Court and the Reasons for Judgment in matter number PEG 189 of 2010 to the District Court of Western Australia at the hearing in matter number CIVO 141 of 2006.

Orders

Orders of the court

The Applicants application for leave under s.58(3)(b) of the Bankruptcy Act 1966 (Cth) to take a fresh step in proceedings in the District Court of Western Australia in matter number CIVO 141 of 2006 be dismissed.

The Applicants to provide a copy of the orders of this Court and the Reasons for Judgment in matter number PEG 189 of 2010 to the District Court of Western Australia at the hearing today in matter number CIVO 141 of 2006.

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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