Gott v Toogood - [2021] FedCFamC2G 149

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gott v Toogood [2021] FedCFamC2G 149

File number(s): BRG337 of 2019

Judgment of: JUDGE JARRETT

Date of judgment: 22 October 2021

Catchwords: BANKRUPTCY – creditors petition– whether that still due and owing

Legislation:
Uniform Civil Procedure Rules 1989 (Qld)

Bankruptcy Act 1966 (Cth)

Cases cited:
Gott & Ors v Toogood & Anor [2020] FCCA 3454

Toogood v Gott [2019] FCA 1792

Deputy Commissioner of Taxation v Clyne (1984) 4 FCR 157

Menzies v Paccar Financial Pty Ltd [2011] FCA 460

Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495; [1920] All ER 340

Lowbeer v De Varda [2018] FCAFC 115; (2018) 264 FCR 228

Noye v Robbins [2010] WASCA 83

Division: Division 2 General Federal Law

Number of paragraphs: 41

Date of last submission/s: 24 March 2021

Date of hearing: 23 and 24 March 2021

Place: Townsville

Counsel for the Applicants: Mr McQuade of Queens Counsel

Solicitor for the Applicants: Connolly Suthers

Solicitor for the First Respondent: The First Respondent appearing on their own behalf

Solicitor for the Second Respondent: The Second Respondent appearing on their own behalf

Table of Corrections

25 October 2021 The name of the Second Respondent has been corrected to “ CASSOWARY COAST REGIONAL COUNCIL”

ORDERS

BRG337 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF STEVEN PAUL TOOGOOD AND JULIANNE TOGOOD

BETWEEN:
JAMES PATRICK CECIL GOTT

First Applicant

CASSOWARY COAST REGIONAL COUNCIL (ABN 20 889 787 211)

Second Applicant

TRACEY TAYLOR (and others named in the Schedule)

Third Applicant

AND:
STEVEN PAUL TOOGOOD

First Respondent

JULIANNE TOOGOOD

Second Respondent

ORDER MADE BY:

JUDGE JARRETT

DATE OF ORDER:

22 OCTOBER 2021

THE COURT ORDERS THAT:
1. A sequestration order be made against the estates of Steven Paul Toogood and Julianne Toogood
2. The applicant creditors’ costs of and incidental to the petition, including reserved costs, if any, be taxed in accordance with the Federal Court Rules and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
THE COURT NOTES that the date of the act of bankruptcy is 26 March, 2019.
These orders and reasons were prepared by Judge Jarrett but were published by Judge Vasta pursuant to s 210(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE JARRETT:

In 2017 the petitioning creditor, James Gott commenced proceedings for damages for defamation against the respondents to the creditor’s petition. On 7 September, 2017 the respondents (who were the defendants in the defamation proceedings) filed a defence and counterclaim against Mr Gott and the other petitioning creditors, joining those others to the proceedings for that purpose.
The petitioning creditors brought two applications for certain interlocutory relief against the respondents (the plaintiffs by counterclaim). One application was brought by Mr Gott in the defamation proceedings. He sought the striking out of the respondents’ defence to his claim. The defendants by counterclaim brought an…

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 Gott v Toogood

Details

AGLC: Gott v Toogood [2021] FedCFamC2G 149
Case: [2021] FedCFamC2G 149
Decision Date: 22 October 2021

CaseChat Overview and Summary

In the case of Gott v Toogood, the petitioner, the creditors, filed a petition seeking a sequestration order against the debtor. The dispute centred on whether the debt claimed by the creditors was still due and owing by the debtor, and whether the debtor had committed an act of bankruptcy by failing to comply with a bankruptcy notice. The matter was heard in the Federal Circuit Court of Australia.

The central legal issues before the court were whether the amount of the costs reflected in the costs order was appropriate, and whether the debtor had committed an act of bankruptcy by failing to comply with the bankruptcy notice. The court had to consider the evidence presented by both parties regarding the assessment of costs and the service of the bankruptcy notice.

The court found that the costs were assessed by a costs assessor in accordance with the Uniform Civil Procedure Rules 1989 (Qld). The fee of $74,157.96 set out in the amended costs certificate included professional fees and disbursements, as well as the cost assessor’s fee. The court accepted that the assessment was reliable and that the creditors had the opportunity to make submissions in relation to the costs during the assessment process. The court was satisfied that the debtor had committed an act of bankruptcy by failing to comply with the bankruptcy notice, and that the debt claimed in the petition was still owing by the debtor. The court granted the petitioning creditors' application for a sequestration order against the debtor's estate.

The court ordered that a sequestration order be made against the estate of the debtors, and that the petitioners be paid the costs of the proceeding as set out in the amended costs certificate.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

To the extent of the debtors suggest that the amount of costs reflected in the costs order is somehow inappropriate or overstated, the evidence shows that the costs were assessed by a costs assessor in accordance with the usual practice established by the Uniform Civil Procedure Rules 1989 (Qld). The fee of $74,157.96 set out in the amended costs certificate includes professional fees and disbursements and incorporates the cost assessor’s fee of $7,563 plus GST. Without the fee the assessed costs are $66,594.96, which is GST free. No reason is demonstrated to suggest that the assessment of costs made by the cost assessor is unreliable and ought not be accepted. I accept the submissions for the petitioning creditors that the assessment was made after each party had the opportunity of making submissions in relation to the costs during the assessment process. CONCLUSION I am satisfied of the matters stated in the petition. I am satisfied that the debtor was committed an act of bankruptcy on 26 March, 2019 and they fail to comply with terms of a bankruptcy notice properly served upon them. I am satisfied that the debt claimed in the petition is still owing by the debtor to the petitioning creditors. There is no dispute about service of the petition which in any event I find proved. In my view, the petitioning creditors are entitled to the making of a sequestration order against the estate of the debtors and I so order.

Ratio Decidendi

Legal Principle Established

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File number(s):	BRG337 of 2019
Judgment of:	JUDGE JARRETT
Date of judgment:	22 October 2021
Catchwords:	BANKRUPTCY – creditors petition– whether that still due and owing
Legislation:	Uniform Civil Procedure Rules 1989 (Qld) Bankruptcy Act 1966 (Cth)
Cases cited:	Gott & Ors v Toogood & Anor [2020] FCCA 3454 Toogood v Gott [2019] FCA 1792 Deputy Commissioner of Taxation v Clyne (1984) 4 FCR 157 Menzies v Paccar Financial Pty Ltd [2011] FCA 460 Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495; [1920] All ER 340 Lowbeer v De Varda [2018] FCAFC 115; (2018) 264 FCR 228 Noye v Robbins [2010] WASCA 83
Division:	Division 2 General Federal Law
Number of paragraphs:	41
Date of last submission/s:	24 March 2021
Date of hearing:	23 and 24 March 2021
Place:	Townsville
Counsel for the Applicants:	Mr McQuade of Queens Counsel
Solicitor for the Applicants:	Connolly Suthers
Solicitor for the First Respondent:	The First Respondent appearing on their own behalf
Solicitor for the Second Respondent:	The Second Respondent appearing on their own behalf

Table of Corrections
25 October 2021	The name of the Second Respondent has been corrected to “ CASSOWARY COAST REGIONAL COUNCIL”

BRG337 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) IN THE MATTER OF STEVEN PAUL TOOGOOD AND JULIANNE TOGOOD
BETWEEN:	JAMES PATRICK CECIL GOTT First Applicant CASSOWARY COAST REGIONAL COUNCIL (ABN 20 889 787 211) Second Applicant TRACEY TAYLOR (and others named in the Schedule) Third Applicant
AND:	STEVEN PAUL TOOGOOD First Respondent JULIANNE TOOGOOD Second Respondent

ORDER MADE BY:	JUDGE JARRETT
DATE OF ORDER:	22 OCTOBER 2021