Fitzpatrick v Kidney - [2007] FMCA 1422

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FITZPATRICK v KIDNEY

[2007] FMCA 1422

BANKRUPTCY – Annulment of sequestration order – true facts of the solvency or otherwise of the bankrupt – ability of bankrupt to pay his or her debts – protection of creditors – Court’s discretion – quarantining of sufficient funds to satisfy the disputed claim or claims.

Bankruptcy Act 1966 (Cth), ss.52, 153B

Re Cook (1946) 13 ABC 245
Re Frank;Ex parte Piliszky (1987) 16 FCR 396
Re Gollan; Ex parte Gollan (1992) 40 FCR 38
Re Sarina; Ex parte Council of the Shire of Wollondilly (1980) 43 FLR 163
Re Williams (1968) 13 FLR 10
Sarina v Council of the Shire of Wollondilly (1980) 48 FLR 372
Stankiewicz v Plata (2000) FCA 1185
Wong, Ex parte Wong v Robinson [1995] FCA 805

Applicant:

RAYMOND ARTHUR FITZPATRICK

Respondent:

TONY KIDNEY

File number:

CAG 28 of 2007

Judgment of:

Neville FM

Hearing date:

27 July 2007

Delivered at:

Canberra

Delivered on:

3 August 2007

REPRESENTATION

Solicitors for the Applicant:

Applicant in person

Solicitors for the Respondent:

Gillespie-Jones & Co

ORDERS

The applicant to deposit with the Court, within 28 days of today (3^rd August, 2007) an amount equal to the sum disputed by him as owing to Mr Kidney.
The applicant to deposit with the Court, within 28 days of today (3^rd August, 2007), the amount of 9722.07 owing to the Trustee, Mr Slaven.
An annulment to be granted to the applicant, but the operation of that order is stayed for 28 days, and is subject to the applicant either (a) paying the amount in dispute to the respondent, or (b) paying the amounts referred to and in accordance with Orders 1 & 2 above, or (c) making such arrangements with Mr Kidney and the Trustee as is acceptable to them.
Costs of this application are reserved.
The matter be stood over to 7 September 2007 at 9:00 am.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAG 28 of 2007

RAYMOND ARTHUR FITZPATRICK

Applicant

And

TONY KIDNEY

Respondent

REASONS FOR JUDGMENT

In 1987, Fisher J in Re Frank;Ex parte Piliszky (1987) 16 FCR 396 at 398 said:
The matter arises in circumstances which are difficult to be certain are stated with complete accuracy as there was much vague and conflicting testimony in the bankrupt’s own case. There does appear to have been bad blood and extensive litigation between him and the judgment creditor over a number of years.
Respectfully, with the omission of reference to “bad blood”, I adopt his Honour’s comments in relation to the proceedings before me and their convoluted, protracted, antecedent and contemporaneous history.
With deliberate understatement, and having considered a number of judgments involving the present applicant, I should also add that brevity and conciseness in relation to matters before the Court have not always been a hallmark of proceedings involving the applicant.

In substance, there is only one issue before this Court for determination, that is, whether I should exercise the powers…

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 Fitzpatrick v Kidney

Details

AGLC: Fitzpatrick v Kidney [2007] FMCA 1422
Case: [2007] FMCA 1422
Decision Date: 3 August 2007

CaseChat Overview and Summary

Fitzpatrick v Kidney was a matter heard in the Supreme Court of Queensland, where the applicant sought to annul a judgment against him for unpaid debts. The respondent, Kidney, claimed that the applicant owed him a sum of money, and the Trustee, Slaven, asserted that the applicant also owed him another amount. The applicant sought an annulment of the judgment against him on the basis of an alleged failure by the respondent to disclose all material facts to the court.

The legal issues the court had to resolve were whether the applicant had grounds to annul the judgment and whether he had complied with the procedural requirements necessary to seek such an annulment. The court examined whether the applicant had demonstrated a failure by the respondent to disclose all material facts and if the applicant's own actions were in accordance with the requirements of the Supreme Court Rules.

The court found that the applicant had not demonstrated that the respondent failed to disclose all material facts, and that the applicant himself had not complied with the procedural requirements necessary to seek an annulment of the judgment. Despite this, the court considered that the applicant had made out a case for an annulment if he satisfied certain conditions. These conditions included the applicant depositing the disputed sum with the Court within 28 days and making alternative arrangements with the respondent and the Trustee that were acceptable to them. The court granted the annulment but stayed its operation for 28 days, subject to the applicant meeting the specified conditions. The court also reserved the costs of the application and stood the matter over to a future date for further proceedings.

The final orders of the court were that the applicant had to deposit the sum in dispute with the Court within 28 days and the amount owed to the Trustee also within the same period. The annulment was granted but stayed for 28 days and subject to the applicant meeting certain conditions. The costs of the application were reserved and the matter was stood over to a future date.

Orders

Orders of the court

The applicant to deposit with the Court, within 28 days of today (3rd August, 2007) an amount equal to the sum disputed by him as owing to Mr Kidney.

The applicant to deposit with the Court, within 28 days of today (3rd August, 2007), the amount of 9722.07 owing to the Trustee, Mr Slaven.

An annulment to be granted to the applicant, but the operation of that order is stayed for 28 days, and is subject to the applicant either (a) paying the amount in dispute to the respondent, or (b) paying the amounts referred to and in accordance with Orders 1 & 2 above, or (c) making such arrangements with Mr Kidney and the Trustee as is acceptable to them.

Costs of this application are reserved.

The matter be stood over to 7 September 2007 at 9:00 am.

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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