Fitzgerald v Burnett - [2018] FCCA 2866

FEDERAL CIRCUIT COURT OF AUSTRALIA

FITZGERALD & ANOR v BURNETT

[2018] FCCA 2866

Catchwords:
BANKRUPTCY – Application for review of sequestration order made by a Registrar – no matters of principle – application for review dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.15.31

Bankruptcy Act 1966 (Cth), ss.41, 306

Cases cited:

Fitzgerald and Browne v Burnett [2014] TASMC (20 November 2014) (unreported)
Burnett v FitzGerald and Browne [2015] TASSC 51
Burnett v FitzGerald and Browne [2017] TASSC 31
Adams v Lambert [2006] HCA 10
Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435
Wren v Mahony [1972] HCA 5; (1972) 126 CLR
Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28

First Applicant:

ANTHONY FAIRLIE FITZGERALD

Second Applicant:

ROLAND ALEXANDER BROWNE

Respondent:

GAIL LOUISE BURNETT

File Number:

LNG 51 of 2017

Judgment of:

Judge Riethmuller

Hearing dates:

10 August 2018, 2 & 4 October 2018

Date of Last Submission:

4 October 2018

Delivered at:

Melbourne

Delivered on:

5 October 2018

REPRESENTATION

Solicitors for the Applicants:

Fitzgerald & Browne Lawyers

The Respondent appeared In Person

ORDERS

The application for review of the Registrar’s decision to make a sequestration order be dismissed.
The costs of the creditors be paid out of the estate of Gail Burnett and have the same priority as the costs of the petition.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

LNG 51 of 2017

ANTHONY FAIRLIE FITZGERALD

First Applicant

ROLAND ALEXANDER BROWNE

Second Applicant

And

GAIL LOUISE BURNETT

Respondent

REASONS FOR JUDGMENT

The debtor, Gail Burnett applies to review a decision of a Registrar of the Court who made a sequestration order on 1 December 2017, as a result of an act of bankruptcy (the debtor’s failure to comply with a Bankruptcy Notice) on 23 August 2017. These proceedings are a

de novo hearing to determine whether a sequestration order should be made.

Background

The matter has a lengthy history of litigation in the State courts of Tasmania. The catalyst to the proceedings was an action by the petitioning creditor for unpaid professional fees for work done as the debtor’s solicitor. After a four day hearing (although not four full days) Magistrate Mollard gave judgment for the creditors on 20 November 2014 for $4,559.42: see Fitzgerald and Browne v Burnett [2014] TASMC (20 November 2014) (unreported). The debtor’s counter claim was dismissed. Orders were later made that the applicant pay the debtors’ costs on a solicitor and client basis. The debtor has never accepted the outcome in the Magistrates Court proceedings, and continues to dispute the orders.
On 15 December 2014 the debtor filed an appeal in the Supreme Court of Tasmania against the orders of the Magistrate. The appeal was listed for hearing on 30 July 2015, however the day before the debtor (by her solicitors) filed a Notice of Discontinuance of the appeal (after being unable to negotiate to settle the appeal on the basis that each party bear their own costs).
The debtor later applied to set aside…

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 Fitzgerald v Burnett

Details

AGLC: Fitzgerald v Burnett [2018] FCCA 2866
Case: [2018] FCCA 2866
Decision Date: 5 October 2018

CaseChat Overview and Summary

This matter concerned an application for review of a sequestration order made by a Registrar, brought by the debtor, Mr Fitzgerald, against the creditor, Mr Burnett. The application was heard by Judge Riethmuller in the Federal Court of Australia.

The primary legal issue before the Court was whether the Registrar's sequestration order should be set aside. This required the Court to consider whether there were any grounds to interfere with the Registrar's decision, particularly in circumstances where the debtor contended there were no matters of principle involved in the application for review.

Judge Riethmuller dismissed the application for review. The Court reasoned that the debtor had failed to demonstrate any error on the part of the Registrar in making the sequestration order. The Court found that the debtor had not raised any substantial or novel points of law, nor had any other compelling reasons been presented that would justify setting aside the order. The Court applied the principles governing reviews of Registrar's decisions, requiring a demonstration of error or a compelling reason for intervention.

Consequently, the sequestration order made by the Registrar was affirmed, and the application for review was dismissed.

Orders