BANKRUPTCY - application under s139ZS of the Bankruptcy Act 1966 to set aside s139ZQ notice - whether there is onus of proof on applicant to disprove matters relied upon in notice.
EVIDENCE - admissibility of financial statements of corporation - relevance of documents to question - whether shares in corporation represented valuable consideration.
Bankruptcy Act 1966 (Cth) Pt VI, Div 4B, Subdiv J (ss139ZQ-139ZT); Div 3 (ss120-121); ss120(1), 120(2), 120(5), 121(1), 122(3), 123(2), 124(2), 139ZQ(2), 139ZQ(4), 139ZR(1), 139ZR(2), 139ZR(3), 139ZS(1), 139ZT(1) Bankruptcy Amendment Act 1991 The Constitution, Ch III Corporations Law s1305
ALDEN JOHN HALSE as Trustee of the Property of Neville Ross Payne, a Bankrupt v MICHAEL NORMAN NORTON WAG78 OF 1996
BLACK CJ, LEE, R D NICHOLSON JJ PERTH 23 JULY 1997
IN THE FEDERAL COURT ) GENERAL DISTRIBUTION OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. WAG78 OF 1996
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
B E T W E E N: ALDEN JOHN HALSE as Trustee of the Property of Neville Ross Payne, a Bankrupt
Appellant
(First Respondent)
AND:MICHAEL NORMAN NORTON
Respondent
(Applicant)
COURT: BLACK CJ, LEE, R D NICHOLSON JJ PLACE: PERTH DATED: 23 JULY 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
) WESTERN AUSTRALIA DISTRICT REGISTRY ) No: WAG 78 of 1996 ) GENERAL DIVISION )
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ALDEN JOHNHALSE as Trustee of the Property of Neville Ross Payne, a Bankrupt Appellant (First Respondent)
AND: MICHAEL NORMAN NORTON Respondent (Applicant)
COURT : BLACK CJ, LEE, R D NICHOLSON JJ. PLACE : PERTH DATED : 23 JULY 1997
REASONS FOR JUDGMENT
BLACK CJ:
The main issue in this appeal is whether s 139ZS of the Bankruptcy Act 1966 (“the Act”) imposed an onus upon…
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.
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AGLC
Halse v Norton [1997] FCA 673
Case
[1997] FCA 673
Decision Date
CaseChat Overview and Summary
The appeal in Halse v Norton, heard by Black CJ, Lee, and R D Nicholson JJ, involved an application to set aside a notice under s 139ZS of the Bankruptcy Act 1966. The central issue was whether the applicant, Mr Norton, bore the onus of proving that Subdivision J of Division 4B of Part VI of the Act did not apply to him. The court concluded that the onus of proof remained on the trustee, as per Division 3 of the Act, which deals with the property available for the payment of a bankrupt's debts. The court found that Subdivision J only changed the position concerning the onus of proof by requiring the applicant to present sufficient evidence to challenge the validity of the notice. The appeal was dismissed with costs.
In addition, the court addressed the admissibility of financial statements of the corporation, Elgin, which were relevant to the question of whether the shares in Elgin represented valuable consideration. The court held that the financial statements were admissible as they were kept by Elgin under a requirement of company law and were relevant to the issue of whether valuable consideration was provided for the transaction. The appeal was dismissed with costs.