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) |
| 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…
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- AGLC
- Fitzgerald v Burnett [2018] FCCA 2866
- Case
- [2018] FCCA 2866
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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