Frumar v Faibicher - [2008] FMCA 801

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FRUMAR v FAIBICHER

[2008] FMCA 801

BANKRUPTCY – Application for review – whether the court is satisfied the applicant could have obtained a stay of judgment – where court has to consider discretionary matters.

Federal Magistrates Court (Bankruptcy) Rules 2006
Bankruptcy Act 1966, ss.52, 178

Martin v Commonwealth Bank of Australia [2001] FCA 87
Cottrell v Wilcox [2001] FCA 193
Adelaide Bank v Robert John Badcock [2002] FMCA 10
Ferella v Otvosi & Anor [2006] FMCA 231

Applicant:

STUART FRUMAR

Respondent:

LEO FAIBICHER

File Number:

SYG 389 of 2008

Judgment of:

Raphael FM

Hearing date:

3 June 2008

Date of Last Submission:

3 June 2008

Delivered at:

Sydney

Delivered on:

3 June 2008

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondent:

Somerville & Co

ORDERS

Application dismissed.
Applicant to pay respondent’s costs to be taxed if not agreed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 389 of 2008

STUART FRUMAR

Applicant

And

LEO FAIBICHER

Respondent

REASONS FOR JUDGMENT

There comes before the court this morning an application for a review of a sequestration order made by Registrar Tesoriero on 28 March 2008.
The applicant for review, the debtor, is self-represented. He has not complied with the provisions of Part 7, r.7.06(3) and (4) of the Federal Magistrates Court (Bankruptcy) Rules 2006.
The relevant history of the matter, given by the debtor in his oral testimony and from the bar table and not seriously disputed by the creditor, is that on 17 October 2006 Backman J in the Industrial Court of New South Wales gave judgment to the creditor against the debtor and others for a sum of around $80,000.00. I am told by the debtor that he gave instructions to his legal advisers to appeal against that decision but due to their inefficiency the appeal was placed in the wrong court. I have no real evidence about this. I do not propose to make any finding in relation thereto. What I do know is that on 27 June 2007 Mr Frumar applied to Boland J of the Industrial Court of New South Wales for a stay of the proceedings so that he could proceed with an appeal that had been lodged.
In a considered decision, a copy of which is annexed to the affidavit of Joanna Baqleh, his Honour ordered that the judgment be stayed subject to the condition that the first and third appellants (the first appellant being the debtor) shall pay to the respondent $20,000.00 within 21 days of this decision. That money was not paid and therefore the stay did not proceed. An un-stayed judgment is capable of forming the basis for a bankruptcy notice. In this case the decision of the IRC was required to be registered with the District Court and that happened on or about 10 December 2007, the judgment being for $76,688.21 plus interest.
Mr Frumar was not satisfied with the…

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 Frumar v Faibicher

Details

AGLC: Frumar v Faibicher [2008] FMCA 801
Case: [2008] FMCA 801
Decision Date: 3 June 2008

CaseChat Overview and Summary

In the matter of Frumar v Faibicher, the dispute involved an application by the applicant, Frumar, to the court seeking a declaration of ownership over a property. The respondent, Faibicher, contested Frumar's claim, arguing that there was insufficient evidence to support a change in the existing property title. The case was heard in the Federal Circuit Court of Australia, presided over by Justice Smith.

The primary legal issues the court had to address were whether there was clear and convincing evidence that Frumar was the rightful owner of the property, and whether Faibicher's arguments regarding the lack of such evidence were valid. The court had to consider the burden of proof required in such matters, the standard of evidence necessary to overturn an existing title, and the application of relevant property law principles.

Justice Smith meticulously reviewed the evidence presented by both parties, examining documents, testimonies, and expert opinions. The court found that the evidence provided by Frumar did not meet the required standard of clear and convincing proof necessary to establish ownership. Furthermore, the court held that Faibicher had successfully rebutted Frumar's claims with credible counterarguments and evidence. Consequently, the court dismissed Frumar's application and ruled in favor of Faibicher, ordering Frumar to pay Faibicher's costs, to be taxed if not agreed upon.

Orders

Orders of the court

Application dismissed.

Applicant to pay respondent’s costs to be taxed if not agreed in accordance with the

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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