FEDERAL COURT OF AUSTRALIA
Fitzgerald v Fitzgerald [2021] FCAFC 225
Appeal from: File numbers: QUD 375 of 2020
QUD 12 of 2021Judgment of: LOGAN, RANGIAH AND DOWNES J Date of judgment: 10 November 2021 Catchwords: BANKRUPTCY AND INSOLVENCY – appeal from decision of primary judge to dismiss application for review of Registrar’s decision – where Registrar dismissed application under s 40(1)(g) of the Bankruptcy Act 1966 (Cth) – where that order upheld on review in the original jurisdiction – whether appellant has a counter-claim, set-off or cross demand equal to, or in excess of, the judgment debt – whether the Court should go behind the judgment debt – judgment debt one created by a costs order – where appellant alleged no error of principle in primary judge’s decision – where in proceedings in which costs order made appellant’s cause of action pleaded without precision and depended on appellant’s account of arrangement with respondents not supported by contemporaneous documentation – appeal dismissed
BANKRUPTCY AND INSOLVENCY – appeal from decision of the Federal Circuit Court to grant a sequestration order against the appellant – whether primary judge erred in not adjourning the creditor’s petition till resolution of appeal against related decision in this Court – where no suggestion that bankruptcy notice has been complied with – where no reason to transfer proceedings to this Court – appeal dismissed
PRACTICE AND PROCEDURE – interlocutory application for appeal to be dismissed for want of prosecution – where interests of justice support hearing of appeals on merits – interlocutory application dismissed
COSTS – continued non-compliance with case management directions – where appellant already subject to fixed cost order at an interlocutory stage – costs allowed for preparation of both original and supplementary submissions of respondents
Legislation: Bankruptcy Act 1966 (Cth) s 40 Cases cited: Glew v Harrowell, in the matter of Glew (2003) 198 ALR 331
Kitay, in the matter of Frigger (No 2) [2018] FCA 1032
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 36 Date of hearing: 10 October 2021 Counsel for the Appellant: Mr D Edwards Counsel for the Respondents: Mr C Johnstone Solicitor for the Respondents: McCullough Robertson Lawyers ORDERS
QUD 375 of 2020 BETWEEN: MARK ANDREW FITZGERALD
Appellant
AND: ROSLYN MARY FITZGERALD
First Respondent
ROSLYN FITZGERALD PTY LTD ACN 159 299 171
Second Respondent
ROSLYN FITZGERALD NO 3 PTY LTD ACN 607 478 606
Third Respondent
QUD 12 of 2021 BETWEEN: MARK ANDREW FITZGERALD
Appellant
AND: ROSLYN MARY FITZGERALD
First Respondent
ROSLYN FITZGERALD PTY LTD (ACN 159 299 171)
Second Respondent
ROSLYN FITZGERALD NO 3 PTY LIMITED (ACN 607 478 606)
Third Respondent
ORDER MADE BY:
LOGAN, RANGIAH AND DOWNES J
DATE OF ORDER:
10 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The interlocutory…
Continue reading Fitzgerald v Fitzgerald
Sign in free to access the full text
- AGLC
- Fitzgerald v Fitzgerald [2021] FCAFC 225
- Case
- [2021] FCAFC 225
- Decision Date
CaseChat Overview and Summary
The central legal issue in the appeal was whether the appellant had a counter-claim, set-off, or cross demand that equalled or exceeded the judgment debt, which was created by a costs order. The court was also asked to consider whether it should go behind the judgment debt. Another issue was whether the primary judge erred in not adjourning the creditor’s petition until the resolution of the appeal against a related decision in this Court. In regard to the interlocutory application, the issue was whether the interests of justice supported the dismissal of the appeal for want of prosecution.
The court dismissed the appeal and the interlocutory application. In relation to the appeal, the court found no error of principle in the primary judge’s decision. The court held that the appellant’s cause of action was pleaded without precision and depended on an arrangement with the respondents that was not supported by contemporaneous documentation. Regarding the interlocutory application, the court found that the interests of justice supported the hearing of the appeals on the merits. The court also found that there was no reason to transfer the proceedings to this Court. In relation to costs, the court held that the appellant had already been subject to a fixed cost order at an interlocutory stage and, due to the continued non-compliance with case management directions, costs were allowed for the preparation of both the original and supplementary submissions of the respondents.
The orders made by the court were that the appeal be dismissed, the interlocutory application be dismissed, and the appellant pay the respondents’ costs of and incidental to the appeal. The costs were to be fixed by a Registrar if not agreed, and on the fixing of those costs, the Registrar was to allow the costs of and incidental to the original preparing, filing and serving of the respondents’ outline of submissions, together with the costs of and incidental to the preparing, filing and serving of the respondents’ supplementary submissions.
Orders
Orders of the court
1. The appeal be dismissed.
2. The interlocutory application be dismissed.
3. The appellant pay the respondents’ costs of and incidental to the appeal, to be fixed by a Registrar if not agreed. On the fixing of those costs, the Registrar is to allow the costs of and incidental to the original preparing, filing and serving of the respondents’ outline of submissions, together with the costs of and incidental to the preparing, filing and serving of the respondents’ supplementary submissions.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.