Ghosh v Newton (Trial Judgment)

Case [2024] FCA 898


FEDERAL COURT OF AUSTRALIA

Ghosh v Newton (Trial Judgment) [2024] FCA 898

File number: NSD 408 of 2024
Judgment of: JACKMAN J
Date of judgment: 1 August 2024
Catchwords:

BANKRUPTCY AND INSOLVENCY – application for annulment of bankruptcy – where applicant relies on matters that came into existence after sequestration order – where separate application for annulment previously refused – application dismissed

BANKRUPTCY AND INSOLVENCY – application to set aside a notice issued pursuant to s 139ZQ of the Bankruptcy Act

TORTS – accusation of theft – where no cogent basis on which torts of detinue, conversion or trespass could be established

Legislation: Bankruptcy Act 1966 (Cth) ss 120, 153B, 139ZQ, 139ZS
Cases cited:

Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239

Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307

Cottrell v Wilcox [2002] FCA 1115

Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18

Ghosh v Miller (No 2) [2017] FCA 890

Lahiri and Saha [2022] FedCFamC1F 271

Miller v Ghosh [2016] FCCA 2491

Re Deriu (1970) 16 FLR 420

Re Frank; ex parte Piliszky (1987) 16 FCR 396

ReOates; ex parte Deputy Commissioner of Taxation (1987) 17 FCR 402

RePapps; ex parte Tapp (1997) 78 FCR 524

ReRaymond; ex parte Raymond (1992) 36 FCR 424

Re Williams (1968) 13 FLR 10

Rigg v Baker [2006] FCAFC 179; [2006] 155 FCR 531

Saha and Lahiri (No 2) [2022] FedCFamC1A 181

DA Hassall, “Annulment of Bankruptcy and Review of Sequestration Orders” (1993) 67 ALJ 761

Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 16
Date of hearing: 1 August 2024
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: Mr D Neggo
Solicitor for the Respondent: Stacks Law Firm

ORDERS

NSD 408 of 2024
BETWEEN:

DR RATNA GHOSH

Applicant

AND:

SCOTT NEWTON

Respondent

ORDER MADE BY:

JACKMAN J

DATE OF ORDER:

1 AUGUST 2024

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The interlocutory application dated 6 May 2024 be dismissed.

3.The applicant pay the respondent’s costs of the proceedings, including the costs of the interlocutory applications.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
Delivered ex tempore, revised from transcript

JACKMAN J:

  1. By application filed on 10 April 2024, the applicant, Dr Ghosh, seeks an order pursuant to s 153B of the Bankruptcy Act 1966 (Cth) (the Act) annulling her bankruptcy, an extension of time to set aside a notice issued pursuant to the s 139ZQ of the Act dated 4 June 2020 together with an order setting aside that notice, and costs and damages.

  2. In addition, Dr Ghosh seeks interlocutory relief pursuant to orders 2 to 6 of an interlocutory application dated 6 May 2024. Some of that interlocutory relief concerns a property at 49 Patricia Avenue, Charlestown, New South Wales, which is listed for auction to be held…

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AGLC
Ghosh v Newton (Trial Judgment) [2024] FCA 898
Case
[2024] FCA 898
Decision Date

CaseChat Overview and Summary

In the Federal Court, the case of Ghosh v Newton involved an application for the annulment of a bankruptcy order. The applicant, Mr. Ghosh, sought to overturn a sequestration order made against him, arguing that there were matters that had come into existence after the order was made. The respondent, Mr. Newton, opposed the application on the basis that the application was an abuse of process and that the new matters did not warrant a change in the outcome of the original decision. Additionally, Mr. Ghosh filed a separate application to set aside a notice issued under section 139ZQ of the Bankruptcy Act, which was previously dismissed.

The primary legal issue before the court was whether the new matters presented by Mr. Ghosh could serve as a basis for annulling the bankruptcy order. The court also needed to determine if the application to set aside the notice was an abuse of process. Furthermore, the court had to examine the validity of the accusations of theft against Mr. Ghosh and assess whether there was a basis to establish the torts of detinue, conversion, or trespass.

The court found that Mr. Ghosh's application for annulment was an abuse of process, as the new matters did not alter the outcome of the original decision to declare him bankrupt. The court held that the sequestration order should stand, as the new information did not impact the decision. Additionally, the application to set aside the notice was dismissed as it was seen as an attempt to circumvent the original order. The court concluded that there was no cogent basis for the torts of detinue, conversion, or trespass, as the accusations against Mr. Ghosh lacked evidence. As a result, both applications were dismissed, and Mr. Ghosh was ordered to pay the respondent's costs of the proceedings, including the costs of the interlocutory applications. The entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application be dismissed.

2. The interlocutory application dated 6 May 2024 be dismissed.

3. The applicant pay the respondent’s costs of the proceedings, including the costs of the interlocutory applications.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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