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Ghosh v Newton (Trial Judgment)

Ghosh v Newton (Trial Judgment)

Case [2024] FCA 898 1 August 2024

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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:

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.
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…

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 Ghosh v Newton (Trial Judgment)

Details

AGLC: Ghosh v Newton (Trial Judgment) [2024] FCA 898
Case: [2024] FCA 898
Decision Date: 1 August 2024

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

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.

Citations

AGLC Citation

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

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

Saha & Lahiri (No 2)
[2022] FedCFamC1A 181 Para 14

…ant the extension because the application could not succeed. An appeal was subsequently dismissed on 11 November 2022: Saha and Lahiri (No 2) [2022] FedCFamC1A 181 (Aldridge, Kari, and Brasch JJ).…
Lahiri & Saha
[2022] FedCFamC1F 271 Para 14

…been decided in the Federal Circuit and Family Court of Australia. The matter was dealt with at first instance by Jarrett J in Lahiri and Saha [2022] FedCFamC1F 271, refusing an extension of time to bring the application and dismissing the application to set aside the s 139ZQ notice. In the course of considering the ex…
Ghosh v Miller (No 2)
[2017] FCA 890 Para 6

…Dr Ghosh also brought an appeal from the sequestration order, which was dismissed by Farrell J on 8 August 2017: Ghosh v Miller (No 2) [2017] FCA 890. The grounds of appeal included the question of solvency at the time the sequestration order had been made: see [88]–[93]. At [131], Farrell J said that Dr Ghosh ha…
Ghosh v Miller
[2016] FCA 1293 Para 5

…r brought an application that her bankruptcy be annulled pursuant to s 153B of the Act, which was dismissed on 2 November 2016: Miller v Ghosh (No 3) [2016] FCA 1293. In the course of argument before Markovic J, Dr Ghosh raised the issue of her solvency, among other matters: see [77] and [40]–[55]. Justice Markovi…
Miller v Ghosh (No 3)
[2016] FCCA 2491 Para 3

…Dr Ghosh was made bankrupt by order of Manousaridis J on 30 September 2016: Miller v Ghosh [2016] FCCA 2491. In the course of argument in those proceedings, Dr Ghosh relied on an allegation that she was solvent and, in particular, Dr Ghosh has argued before me today that she relies on what she describes as “a tende…
Yang v L & H Group (a limited Partnership)
[2015] FCA 932 Para 9

…In Yang v L & H Group (a limited partnership) [2015] FCA 932, Beach J said at [28]–[31]: [28]The trigger for the exercise of discretion under s 153B(1) is that the Court is “satisfied that a sequestration order ought not to have been made”. If that condition is satisfied then the Court’s power is enlivened and it…
Francis v Eggleston Mitchell Lawyers Pty Ltd
[2014] FCAFC 18 Para 8

…t out the following summary of relevant propositions, which was cited with approval by the Full Court in Francis v Eggleston Mitchell Lawyers Pty Ltd [2014] FCAFC 18 at [16] (Rares, Flick and Bromberg JJ): (1)An order can be made under s 153B(1) of the Act notwithstanding that the applicant has been discharged fro…
Bulic v Commonwealth Bank of Australia Ltd
[2007] FCA 307 Para 8

…sequestration order ought not to have been made, the Court may make an order annulling the bankruptcy. In Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307 at [12], Tracey J set out the following summary of relevant propositions, which was cited with approval by the Full Court in Francis v Eggleston Mitc…
Heinrich v Commonwealth Bank of Australia
[2003] FCAFC 315 Para 9

…FCR 531 at [62] per French J and at [109] per Cowdroy J and Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315 at [20] per Carr, Finn and Sundberg JJ. [31]Finally, in granting an annulment application, the Court may do so on terms, including that: •the trustee’s costs and expenses to the date of the annulme…
Cottrell v Wilcox
[2002] FCA 1115 Para 8

…: Re Williams (1968) 13 FLR 10 at 24–5; Boles at 247; Re Papps at 531; Rigg v Baker [2006] FCAFC 179 at [79]; Cottrell v Wilcox [2002] FCA 1115 at [7]. Additional considerations are collected in DA Hassall, “Annulment of Bankruptcy and Review of Sequestration Orders” (1993) 67 ALJ 761 at 766.…
Boles v Official Trustee in Bankruptcy
[2001] FCA 639 Para 8

…en if those facts were not before the Court at the time at which the sequestration order was made: Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239 at 243; Re Raymond; ex parte Raymond (1992) 36 FCR 424 at 426. (4)A sequestration order “ought not to have been made” if, on the facts known at the time of the a…
Hudson v Whalan
[1999] FCA 189 Para 9

…Spender J, Re Frank; Ex parte Piliszky (1987) 16 FCR 396 at 402 and 403 per Fisher J, Hudson v Whalan [1999] FCA 189 at [7] to [14] per Sackville, North and Hely JJ, Rigg v Baker (2006) 155 FCR 531 at [62] per French J and at [109] per Cowdroy J and Heinrich v Commonwealth Bank of Australia [2003] FCAFC 315 at [2…
Re Papps; Ex parte Tapp
[1997] FCA 1031 Para 8

…e Court may be properly informed and may make a judgment that is based on the actual circumstances of the applicant”: Re Papps; ex parte Tapp (1997) 78 FCR 524 at 531. (3)In determining whether or not a sequestration order “ought not to have been made” the Court is not confined to a consideration of whether the orde…
Rigg v Baker
[2006] FCAFC 179 Para 8

…ng at which the sequestration order was made: Re Williams (1968) 13 FLR 10 at 24–5; Boles at 247; Re Papps at 531; Rigg v Baker [2006] FCAFC 179 at [79]; Cottrell v Wilcox [2002] FCA 1115 at [7]. Additional considerations are collected in DA Hassall, “Annulment of Bankruptcy and Review of Sequestration Orders” (199…

Legislation cited in this decision · 2

Bankruptcy Act 1966 (Cth)
120, 139ZQ, 139ZS, 153B 5 mentions (from Para 1)
Federal Court Rules 2011 (Cth)
1 mention

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

ORDER MADE BY:	JACKMAN J
DATE OF ORDER:	1 AUGUST 2024