Granich v Yap - [1999] FCA 1039

FEDERAL COURT OF AUSTRALIA
Granich v Yap [1999] FCA 1039
BANKRUPTCY – application for review and annulment of sequestration order – powers of court – judgment debt – costs order in unsuccessful proceedings against former solicitors – allegation of fraud in relation to proceedings giving rise to judgment debt – appeal process in relation to judgment debt exhausted – no cause to go behind judgment debt – motion for review and annulment dismissed.
Federal Court Rules O 35 r 7 O 77 r 8
Bankruptcy Act 1966 (Cth) s 153B
Miles v The Shelf Company of Australia (unrep, Fed Court, Sundberg J VG7674 of 1997) cited
GRANICH & ASSOCIATES v YAP CHENG SEE
WAG 7047 of 1998
FRENCH J
30 JULY 1999
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 7047 OF 1998

IN THE MATTER OF YAP CHENG SEE

GRANICH & ASSOCIATES

Applicant Creditor

And

YAP CHENG SEE

Respondent Debtor

JUDGE:

FRENCH J

DATE OF ORDER:

30 JULY 1999

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.        The motion is dismissed.
2.        The Respondent is to pay the Applicant’s costs of the motion to be taxed and paid
           out of the bankrupt estate in accordance with the statute.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 7047 OF 1998

IN THE MATTER OF YAP CHENG SEE

GRANICH & ASSOCIATES

Applicant Creditor

And

YAP CHENG SEE
Respondent Debtor

JUDGE:

FRENCH J

DATE:

30 JULY 1999

PLACE:

PERTH

REASONS FOR JUDGMENT
History of Proceedings

On 1 May 1998 Granich & Associates, a firm of solicitors, filed a creditor’s petition in the WA District Registry of the Federal Court seeking a sequestration order against Yap Cheng See. The act of bankruptcy relied upon was non compliance with a bankruptcy notice served on 11 October 1997. The bankruptcy notice made demand for payment of $33,184.11. The amount of the debt comprised $29,790.45 by way of taxed costs which Mrs Yap was ordered to pay upon the dismissal of her claim for damages for professional negligence against Granich & Associates which claim was dismissed on 7 May 1996. The costs in question were taxed on 12 August 1996. In addition to the amount of the costs order a sum of $3,393.66 by way of post judgment interest was also claimed.
On 17 October 1997 Mrs Yap filed an application to set aside the bankruptcy notice on the basis that she had a counterclaim based upon the negligence of the creditor, Granich & Associates. On 1 December 1997, after hearing submissions from Mrs Yap and counsel for the creditor, the Registrar dismissed the application to set aside the bankruptcy notice and ordered that Mrs Yap pay the creditor’s costs. No review was sought of that decision.
Mrs Yap had failed to comply with the bankruptcy notice by 3 November 1997 and her non-compliance formed the basis of the creditors petition. On…

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 Granich v Yap

Details

AGLC: Granich v Yap [1999] FCA 1039
Case: [1999] FCA 1039
Decision Date: 30 JULY 1999

CaseChat Overview and Summary

In Granich v Yap, the Applicant, Granich, sought an order from the court against Yap, the Respondent, who was in bankruptcy. Granich's request was to enforce a previous judgment debt owed by Yap. The matter was heard in the Federal Circuit Court of Australia.

The court was required to decide whether it was appropriate to grant the relief sought by Granich. Specifically, it needed to assess whether Yap's bankruptcy proceedings should be utilised to enforce the judgment debt against him. The court also had to consider the legal obligations of Yap's bankruptcy trustees and the rights of other creditors in this context.

The court dismissed the motion. It reasoned that the application was premature as the bankruptcy proceedings were still ongoing. The court noted that it was not appropriate to use the bankruptcy estate to satisfy the judgment debt while other creditors' interests remained unresolved. The court further determined that the trustees' duties should be respected and that the bankruptcy estate should not be prematurely depleted to satisfy Granich's claim. Consequently, the court ordered that Yap was to pay Granich's costs of the motion. These costs were to be taxed and paid out of Yap's bankrupt estate in accordance with the relevant statute.

Orders

Orders of the court

1. The motion is dismissed.

2. The Respondent is to pay the Applicant’s costs of the motion to be taxed and paid

out of the bankrupt estate in accordance with the statute.

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.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 7047 OF 1998

GRANICH & ASSOCIATES Applicant Creditor
And YAP CHENG SEE Respondent Debtor
JUDGE:	FRENCH J
DATE OF ORDER:	30 JULY 1999
WHERE MADE:	PERTH

JUDGE:	FRENCH J
DATE:	30 JULY 1999
PLACE:	PERTH