Harb v Gajic - [2011] FMCA 764

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARB v GAJIC

[2011] FMCA 764

BANKRUPTCY – Application to review – creditor’s petition – Court satisfied as to proof of matters in s.52 of the Bankruptcy Act 1966 (Cth) – no sufficient cause a sequestration order ought not be made – sequestration order made.

Bankruptcy Act 1966 (Cth), ss.43, 52
Bankruptcy Regulations 1996 (Cth), reg. 4.02A

Gajic v Harb & Anor [2011] VSCA 132

Applicant:

NABIL HARB

Respondent:

MICHAEL (MIKE) GAJIC

File Number:

MLG 1362 of 2010

Judgment of:

Hartnett FM

Hearing date:

29 September 2011

Delivered at:

Melbourne

Delivered on:

14 October 2011

REPRESENTATION

Counsel for the Applicant:

Mr Woolley

Solicitors for the Applicant:

Lewenberg & Lewenberg Solicitors

The Respondent:

In person

ORDERS

That the application for review filed 21 July 2011 is dismissed.
The Court affirms the earlier orders made on 1 July 2011 by Registrar Pringle.
The applicant’s costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1362 of 2010

NABIL HARB

Applicant

And

MICHAEL (MIKE) GAJIC

Respondent

REASONS FOR JUDGMENT

On 30 September 2010, the applicant creditor filed a creditor’s petition. Mr Nabil Harb applied to the court for a sequestration order under s.43 of the Bankruptcy Act 1966 (Cth) (the Act), against the estate of Michael (Mike) Gajic, claiming that the respondent debtor owed the applicant creditor the amount of $205,911.47, pursuant to the County Court general form of judgment entered 18 December 2007. An act of bankruptcy was said to be committed by the respondent debtor on 17 August 2010 in his failure to comply with the requirements of a bankruptcy notice numbered VN654/2009 and served personally upon the respondent debtor on 27 July 2010. The bankruptcy notice was issued on 3 April 2009 and pursuant to reg. 4.02A(2)(b) of the Bankruptcy Regulations 1996 (Cth), the official receiver for the bankruptcy district of Victoria provided for time in which the notice could be served to be extended to 5 October 2010, by notice dated

26 July 2010.
On 4 August 2010, Ms Kirenjit Cheema affirmed an affidavit of service of the bankruptcy notice, deposing to service being effected personally on 27 July 2010, with the bankruptcy notice having attached to it an extension of time for the service of the notice issued by the official receiver on 26 July 2010.
The first hearing date of the petition was to have been the 18 November 2010. However, that date was extended to 16 December 2010 by administrative extension on 22 October 2010. The hearing of the petition was adjourned on many occasions, before being finally concluded by Registrar Pringle on 1 July 2011. Mr Gajic filed a notice of appearance on 6 April 2011 and a notice stating grounds of opposition to the petition on 7 April 2011.
On 1 July 2011, Registrar Pringle ordered that:
1.A sequestration order be made against the estate of Michael Gajic (also known as…

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 Harb v Gajic

Details

AGLC: Harb v Gajic [2011] FMCA 764
Case: [2011] FMCA 764
Decision Date: 14 October 2011

CaseChat Overview and Summary

Harb v Gajic involved a dispute between the applicant, Harb, and the respondent, Gajic, concerning a review of earlier court orders. The case was heard in the Federal Circuit Court of Australia. The primary issue before the Court was whether the application for review, filed by Harb, should be granted. This review was in relation to orders made by Registrar Pringle on 1 July 2011, which were now being contested by Harb.

The Court considered the grounds upon which the application for review was based, determining whether there were any errors in the earlier orders that warranted a revision. The Court found that Harb had not provided sufficient grounds for the application to be successful. The Court held that the application for review was not justified and dismissed it accordingly. The Court also affirmed the earlier orders made by Registrar Pringle, maintaining the status quo. Furthermore, the Court ordered that Harb's costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

Orders

Orders of the court

That the application for review filed 21 July 2011 is dismissed.

The Court affirms the earlier orders made on 1 July 2011 by Registrar Pringle.

The applicant’s costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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