Green v Wilden Pty Ltd - [2013] FMCA 24

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GREEN & ORS v WILDEN PTY LTD & ORS

[2013] FMCA 24

BANKRUPTCY – Application to set aside bankruptcy notice – whether set-off.

Bankruptcy Act 1966 (Cth), ss.30, 40(1), 41(7)

Ebert v The Union Trustee Company of Australia Limited (1960) 104 CLR 346
Green & Ors v Wilden Pty Ltd & Ors [2005] WASC 83
Green & Ors v Wilden Pty Ltd & Ors [2009] HCATrans 272
Guss v Johnstone (2000) 171 ALR 598; [2000] HCA 26
In re GEB; A Debtor [1903] 2 KB 340
Massih v Esber (2008) 250 ALR 648; [2008] FCA 1452
Wilden Pty Ltd v Green [2009] WASCA 38(S)
Wilden Pty Ltd v Green (No. 2) [2012] WASCA 34

First Applicant:

SHARYN LEE GREEN

Second Applicant:

GRAEME WILLIAM GREEN

Third Applicant:

JULIE ANN GREEN

Fourth Applicant:

WILLIAM JOSEPH GREEN

Fifth Applicant:

NORMA GLENYCE GREEN

First Respondent:

WILDEN PTY LTD

Second Respondent:

MAGENTA NOMINEES PTY LTD

Third Respondent:

TACE PTY LTD

Fourth Respondent:

SYDNEY JAMES CHESSON

Fifth Respondent:

BERT LEONARD DENBOER

Sixth Respondent:

CALLAO PTY LTD

Seventh Respondent:

BENRONE PTY LTD

File Number:

PEG 211 of 2011

Judgment of:

Lucev FM

Hearing date:

1 June 2012

Date of Last Submission:

1 June 2012

Delivered at:

Perth

Delivered on:

22 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr M L Bennett

Solicitors for the Applicant:

Bennett & Co

Counsel for the Respondents:

Mr M Holler

Solicitors for the Respondents:

AustAsia Legal Pty Ltd

ORDERS

Bankruptcy Notice No. BN4785/2011 be set aside under s.30 of the Bankruptcy Act 1966 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 211 of 2011

SHARYN LEE GREEN

First Applicant

GRAEME WILLIAM GREEN

Second Applicant

JULIE ANN GREEN

Third Applicant

WILLIAM JOSEPH GREEN

Fourth Applicant

NORMA GLENYCE GREEN

Fifth Applicant

And

WILDEN PTY LTD

First Respondent

MAGENTA NOMINEES PTY LTD

Second Respondent

TACE PTY LTD

Third Respondent

SYDNEY JAMES CHESSON

Fourth Respondent

BERT LEONARD DENBOER

Fifth Respondent

CALLAO PTY LTD

Sixth Respondent

BENRONE PTY LTD

Seventh Respondent

REASONS FOR JUDGMENT

Introduction – the present application

The present application is an application under the Bankruptcy Act 1966 (Cth)[1] to set aside, under s.30 of the Bankruptcy Act, a bankruptcy notice[2] issued in respect of a debt of $7,883.30 on 1 July 2011,[3] that debt being costs arising from an order issued by the High Court of Australia on 24 February 2010.[4]
[1] “Bankruptcy Act”.
[2] Bankruptcy Act, s.41(7).
[3] No. BN4785/2011 (“Bankruptcy Notice”).
[4] “High Court Costs Order” and “High Court Costs” respectively.
The applicants submit that the Bankruptcy Notice should be set aside, for one or more of the following reasons:
a)the debt the subject of the Bankruptcy Notice is extinguished;
b)Mr Graeme Green (the second applicant) has a set-off against the amounts claimed in the Bankruptcy Notice; and
c)the service of the Bankruptcy Notice was at the time when it was served, and in all the circumstances, an abuse of process.

Background facts and previous proceedings

Writs of summons…

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 Green v Wilden Pty Ltd

Details

AGLC: Green v Wilden Pty Ltd [2013] FMCA 24
Case: [2013] FMCA 24
Decision Date

CaseChat Overview and Summary

The case of Green v Wilden Pty Ltd [2013] FMCA 24 involved an application to set aside a bankruptcy notice issued under the Bankruptcy Act 1966 (Cth). The applicants, Sharyn Lee Green, Graeme William Green, Julie Ann Green, William Joseph Green, and Norma Glynece Green, sought to have the bankruptcy notice set aside on the grounds that the debt was extinguished, that Graeme Green had a set-off against the amounts claimed, and that the service of the notice was an abuse of process. The respondents were Wilden Pty Ltd and others.

The legal issues before the court were whether the debt was extinguished, whether there was a valid set-off, and whether the service of the notice constituted an abuse of process. The applicants argued that the set-off was effective and extinguished the debt. The respondents contended that the applicants had not demonstrated a sufficient set-off to warrant setting aside the bankruptcy notice.

The court held that the applicants had a valid set-off against the amount of the debt claimed in the bankruptcy notice. The set-off was in respect of money owed to Graeme Green by Tace as trustee for the Summerfield Trust, which significantly exceeded the amount of the debt claimed in the bankruptcy notice. The court found that the set-off could not have been set up in the proceedings in which the debt was obtained, thus satisfying the requirements of the Bankruptcy Act. The court also found that the other grounds for setting aside the bankruptcy notice were not necessary to address, given the availability of the set-off.

The court ordered that the bankruptcy notice be set aside under section 30 of the Bankruptcy Act.

The court reserved the matter for hearing on costs.

Orders