GCS Rapid Access Pty Ltd v Sizer - [2012] FMCA 655

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GCS RAPID ACCESS PTY LTD v SIZER & ANOR

[2012] FMCA 655

BANKRUPTCY – Leave to commence or take fresh steps in proceedings.

Bankruptcy Act 1966 (Cth), s.58(3)(b)

Allansonv Midland Credit Limited & Another (1977) 30 FLR 108
Fraser v Commissioner of Taxation & Anor (1996) 99 FCR 99
Green v Schneller & Anor (2001) 164 FLR 82; [2001] NSWSC 897
Hall v Warner [2006] FCA 852
Macquarie Bank Limited v Bardetta (2005) 3 ABC (NS) 190; [2005] FCA 507
Re Killington; Ex parte Chisholm v The Official Trustee (unreported, Federal Court of Australia, Mansfield J, 20 November 1998)

Applicant:

GCS RAPID ACCESS PTY LTD

First Respondent:

WARREN FRANCIS SIZER

Second Respondent:

MARK ANTHONY CONLAN AS TRUSTEE OF THE BANKRUPT ESTATE OF WARREN FRANCIS SIZER

File Number:

PEG 157 of 2012

Judgment of:

Lucev FM

Hearing date:

30 July 2012

Date of Last Submission:

30 July 2012

Delivered at:

Perth

Delivered on:

1 August 2012

REPRESENTATION

Counsel for the Applicant:

Ms A Symons

Solicitors for the Applicant:

Trinix Lawyers

Counsel for the Respondents:

No appearance

Solicitors for the Respondents:

No appearance

ORDERS (on 30 July 2012)

The Applicant is granted leave, pursuant to s.58(3)(b) of the Bankruptcy Act 1966 (Cth), to continue with legal proceeding matter number 1201 of 2011 against the First Respondent in the District Court of Western Australia.

AND FURTHER ORDERS (on 1 August 2012)

A copy of the Court’s order of 30 July 2012, together with these Reasons for Judgment and this further order, be served on the Second Respondent, with service to be effected by facsimile, by 4.00pm on 3 August 2012.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 157 of 2012

GCS RAPID ACCESS PTY LTD

Applicant

And

WARREN FRANCIS SIZER

First Respondent

MARK ANTHONY CONLAN AS TRUSTEE OF THE BANKRUPT ESTATE OF WARREN FRANCIS SIZER

Second Respondent

REASONS FOR JUDGMENT

(Delivered in Chambers pursuant to s.13(3)(a) of the Federal Magistrates Act 1999 (Cth))

Application and order

The applicant has applied for an order for leave pursuant to s.58(3)(b) of the Bankruptcy Act 1966 (Cth)[1] to continue with a legal proceeding, in matter number 1201 of 2011, against the first respondent, a bankrupt, Warren Francis Sizer,[2] in the District Court of Western Australia.[3]
[1] “Bankruptcy Act”.
[2] “Bankrupt”.
[3] “District Court Proceedings” and “District Court” respectively.
At a hearing on 30 July 2011, the Court made an order granting the leave sought by the applicant, and indicated that short Reasons for Judgment would follow. These are those Reasons for Judgment.
At the outset, it is relevant to note that the Court was informed by Counsel for the applicant that the second respondent, who is the first respondent’s trustee in bankruptcy,[4] was aware of this application and had informed the applicant’s solicitors that he would abide by the order of the Court in respect of the application. The Trustee was also aware that the District Court Proceedings had been adjourned pending the hearing of this…

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 GCS Rapid Access Pty Ltd v Sizer

Details

AGLC: GCS Rapid Access Pty Ltd v Sizer [2012] FMCA 655
Case: [2012] FMCA 655
Decision Date: 1 August 2012

CaseChat Overview and Summary

The case of GCS Rapid Access Pty Ltd v Sizer involved an application by GCS Rapid Access Pty Ltd, the applicant, to the Federal Magistrates Court of Australia for leave to continue with legal proceedings against Warren Francis Sizer, the first respondent, in the District Court of Western Australia. The second respondent, Mark Anthony Conlan, appeared as the trustee of Sizer's bankrupt estate. The legal issues before the Court involved determining whether the proceedings were in respect of a provable debt and whether it was appropriate to grant leave under s.58(3)(b) of the Bankruptcy Act 1966 (Cth) to allow the District Court Proceedings to continue.

The Court considered that the proceedings were indeed in respect of a provable debt, as the applicant claimed $238,936.67 plus costs and interest in relation to the supply of goods and services pursuant to a trade agreement. The Court also found that there was a nexus between the District Court Proceedings and the provable debt in relation to the caveatable interest in the Welshpool Property. The Court found that the District Court Proceedings, which involved property issues, were the better forum to deal with the dispute, as it was an integral part of those proceedings that the caveatable interest in the Welshpool Property be sorted out. Therefore, the Court granted leave under s.58(3)(b) of the Bankruptcy Act to allow the District Court Proceedings to continue.

In light of the above, the Court made an order granting leave to proceed under s.58(3)(b) of the Bankruptcy Act in Court on 30 July 2012, and further ordered that a copy of the Court’s order of 30 July 2012, together with these Reasons for Judgment, and the further order, be served on the Trustee, with service to be effected by facsimile, by 4.00pm on 3 August 2012. The present order was made without conditions, and it remained open to the Trustee to make application to this Court for further orders in relation to the District Court Proceedings or any relief granted by the District Court.

Orders