Harris v De Robillard

Case [2017] FCCA 2451

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRIS & ORS v DE ROBILLARD [2017] FCCA 2451
Catchwords:
BANKRUPTCY – Application for review of sequestration order made by Registrar – whether creditors have established right to a sequestration order – whether judgment debt on the basis of which the bankruptcy notice founding the act of bankruptcy on which creditors relied is a judgment against the debtor – whether debtor has shown there is some other sufficient cause for not making sequestration order – application for review dismissed.

Legislation:

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41, 52, 306

Bankruptcy Regulations 1996 (Cth), reg.4.01
Civil Procedure Act 2005 (NSW), ss.3, 133
Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), rr.4.02, 4.04(1)(a), 4.06

Federal Circuit Court of Australia Act 1999 (Cth), s.104(2)
Legal Profession Act 1987 (NSW), s.208J(3)
Legal Profession Act 2004 (NSW), ss.368, 369(5), 369(7)
Uniform Civil Procedure Rules 2005 (NSW), rr.12.7, 36.1A, 36.10, 36.11, 36.12(1), 36.12(1A)

Cases cited:

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231

Conlan v Mladenis [2007] FCA 1129

Doyle v Hall Chadwick [2007] NSWCA 159

Dowling v Colonial Mutual Life Assurance Society Ltd [1915] HCA 56; (1915) 20 CLR 509
Heywood v Sharpe [2014] FCCA 2999
Lowbeer v De Varda and Lowbeer v Tov-Lev [2017] FCCA 1658

Mills v Futhem Pty Ltd [2011] NSWCA 252

Rainbow Spray Irrigation Pty Ltd v Hoette [1963] NSWR 1440
Re Trevor Peter McSwiney Ex Parte: Mark Sidney Davies [1986] FCA 405
St George Bank Ltd v Helfenbaum [1999] FCA 1337
Totev v Sfar (2008) 167 FCR 193
First Applicant: CHRIS HARRIS
Second Applicant: NEWTON DE BRIERLEY
Third Applicant: M DRAKE-BROKMAN
Fourth Applicant: CHRIS HOLLEY
Respondent: CHRISTIAN ROGER DE ROBILLARD
File Number: SYG 706 of 2017
Judgment of: Judge Manousaridis
Hearing date: 18 September 2017
Date of Last Submission: 18 September 2017
Delivered at: Sydney
Delivered on: 10 October 2017

REPRESENTATION

Counsel for the Applicants, the Respondents on the application for review: Mr P Newton
Solicitors for the Applicants, the Respondents on the application for review: Thomas Henry Bray Lawyer
The Respondent, the Applicant on the application for review, in person

ORDERS

  1. The application for review of the orders made by the Registrar on 17 August 2017 that:

    (a)the estate of the applicant to the review, Mr Christian Roger de Robillard (applicant), be sequestrated; and

    (b)the costs of the respondents to the review (respondents) be fixed in the sum of $5,022.10 and be paid from the estate of the applicant to the review,

    is dismissed.

  2. The respondents’ costs of the review be paid out of the estate of the applicant and have the same priority as the costs of the petition.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 706 of 2017

CHRIS HARRIS

First Applicant

NEWTON DE BRIERLEY

Second Applicant

M DRAKE-BROKMAN

Third Applicant

CHRIS HOLLEY

Fourth Applicant

And

CHRISTIAN ROGER DE ROBILLARD

Respondent

REASONS FOR JUDGMENT

Introduction

  1. By an application filed on 1 September 2017 Mr de Robillard seeks a review of orders made by…

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AGLC
Harris v De Robillard [2017] FCCA 2451
Case
[2017] FCCA 2451
Decision Date

CaseChat Overview and Summary

In this matter, the applicant, Mr Christian Roger de Robillard, sought a review of orders made by a Registrar of the Federal Circuit Court of Australia on 17 August 2017. These orders included the sequestration of Mr de Robillard’s estate and the fixation of costs payable to the respondents, who were creditors. The sequestration order was based on an alleged act of bankruptcy, specifically Mr de Robillard's failure to comply with a bankruptcy notice demanding payment of a judgment debt and accrued interest. This debt arose from two certificates of determination of costs assessment, which were themselves issued following cost orders made against Mr de Robillard in Supreme Court proceedings he had initiated.

The primary legal issue before the Court was whether the creditors had sufficiently proven the existence of a debt to justify the sequestration order, particularly in light of Mr de Robillard's contention that the judgment annexed to the bankruptcy notice contained a material error. Mr de Robillard argued that the "Form of Judgment" did not accurately reflect the judgment entered in the Local Court's computer system, specifically pointing to a typographical error in the spelling of his surname, which included an extra "i". The Court was required to conduct a hearing de novo, meaning it had to consider the petition afresh and be satisfied of the matters stipulated in section 52 of the *Bankruptcy Act 1966* (Cth), including the existence of the debt, the service of the petition, and the matters stated in the petition.

The Court reasoned that a review under section 104(2) of the *Federal Circuit Court of Australia Act 1999* (Cth) is a hearing de novo, requiring the judge to be satisfied of the elements of section 52 of the *Bankruptcy Act* independently of the Registrar's decision. The Court noted that the alleged typographical error in the spelling of Mr de Robillard's name in the Form of Judgment was a central point of contention. However, the Court found that the difference between "de Robillard" and "de Robilliard" was minor and did not, in the circumstances, invalidate the debt or the bankruptcy notice. The Court ultimately dismissed Mr de Robillard's application for review.

The application for review of the orders made by the Registrar was dismissed. The respondents' costs of the review were ordered to be paid out of the estate of the applicant, with the same priority as the costs of the petition.

Orders

Orders of the court

1.

The application for review of the orders made by the Registrar on 17 August 2017 that:

(a) the estate of the applicant to the review, Mr Christian Roger de Robillard (applicant), be sequestrated; and

(b) the costs of the respondents to the review (respondents) be fixed in the sum of $5,022.10 and be paid from the estate of the applicant to the review,

is dismissed.

2.

The respondents’ costs of the review be paid out of the estate of the applicant and have the same priority as the costs of the petition.

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT SYDNEY

SYG 706 of 2017

CHRIS HARRIS

First Applicant

NEWTON DE BRIERLEY

Second Applicant

M DRAKE-BROKMAN

Third Applicant

CHRIS HOLLEY

Fourth Applicant

And

CHRISTIAN ROGER DE ROBILLARD

Respondent

REASONS FOR JUDGMENT

Introduction

1.

By an application filed on 1 September 2017 Mr de Robillard seeks a review of orders made by a Registrar of this Court on 17 August 2017. One of those orders was to sequestrate Mr de Robillard’s estate. That order was made on the joint petition of Mr Chris Harris, Ms Newton De Brierley, Mr Chris Holley, and Mr M Drake-Brockman (Creditors).[1]

2.

The asserted act of bankruptcy on which the sequestration order was made is Mr de Robillard’s failure to comply with the requirements of a bankruptcy notice demanding payment of $53,107.92. That is the sum of a judgment debt for $45,615.00 that was purportedly entered against Mr de Robillard in the Local Court of New South Wales (Local Court) on 29 April 2014 together with interest of $7,492.92.

3.

The judgment was entered in response to the Creditors registering with the Local Court two certificates of determination of costs assessment, one for $42,928.59 and the other for $2,602.41 (Costs Certificates).[2] The Costs Certificates were issued following an assessment of costs that was undertaken pursuant to two orders for costs made against Mr de Robillard in proceedings he commenced against the Creditors in the Supreme Court of New South Wales (Supreme Court Proceedings).

4.

Mr de Robillard claims that the form of judgment that is annexed to the bankruptcy notice does not accurately record the judgment that was entered in the Local Court’s computer system on 29 April 2014. For this reason it will be necessary to distinguish between the judgment that was entered on 29 April 2014 (Judgment) and the evidence of the Judgment that is recorded in the form of judgment that is annexed to the bankruptcy notice (Form of Judgment).

Nature of hearing and issues raised

5.

Mr de Robillard’s application for review is made pursuant to s.104(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act). A review under s.104(2) of the FCC Act is a “hearing de novo”. That means that an: [3]

applicant for review under s.104(2) is under no obligation to demonstrate error on the part of the Registrar, and does not need to establish that the Registrar’s exercise of discretion miscarried in the sense described in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Pattison v Hadjimouratis [2006] FCAFC 153 at [153]- [154].

6.

Where the decision sought to be reviewed is a sequestration order made under s.52 of the Bankruptcy Act 1966 (Cth) (Act), the judge who hears the application for review:[4]

must hear the petition afresh and must be satisfied as to the matters referred to in s 52 of the Bankruptcy Act. Thus, the reviewing judge must herself or himself be satisfied with the proof of:

· the matters stated in the petition;

· the service of the petition; and

· the fact that the debt or debts on which the petitioning creditor relies is or are still owing.

The reviewing judge must also exercise afresh the discretions conferred by s 52(2).

In particular, unless the [

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr de Robillard claims that the form of judgment that is annexed to the bankruptcy notice does not accurately record the judgment that was entered in the Local Court’s computer system on 29 April 2014. For this reason it will be necessary to distinguish between the judgment that was entered on 29 April 2014 (Judgment) and the evidence of the Judgment that is recorded in the form of judgment that is annexed to the bankruptcy notice (Form of Judgment). Mr de Robillard’s application for review is made pursuant to s.104(2) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act). A review under s.104(2) of the FCC Act is a “hearing de novo”. That means that an: [3]applicant for review under s.104(2) is under no obligation to demonstrate error on the part of the Registrar, and does not need to establish that the Registrar’s exercise of discretion miscarried in the sense described in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Pattison v Hadjimouratis [2006] FCAFC 153 at [153]- [154].[3] Conlan v Mladenis [2007] FCA 1129 at [5] (Sundberg J) Where the decision sought to be reviewed is a sequestration order made under s.52 of the Bankruptcy Act1966 (Cth) (Act), the judge who hears the application for review:[4][4] Totev v Sfar (2008) 167 FCR 193 at 197, [14]-[15] (Emmett J); see also the reasons of Cowdroy J (with whom Bennett J agreed) at [97]-[100]must hear the petition afresh and must be satisfied as to the matters referred to in s 52 of the Bankruptcy Act. Thus, the reviewing judge must herself or himself be satisfied with the proof of:· the matters stated in the petition;· the service of the petition; and· the fact that the debt or debts on which the petitioning creditor relies is or are still owing.The reviewing judge must also exercise afresh the discretions conferred by s 52(2).In particular, unless the [Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)] are waived, the judge must have the affidavits referred to in r 4.06 of the [of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)], which must be sworn shortly before the hearing. Except in the case of a review on the same day as the sequestration order was made, the affidavits relied upon before the registrar would not satisfy r 4.06 [of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)]. In the absence of fresh affidavits, it would be necessary that compliance with the Bankruptcy Rules be waived. Thus, in this application for review, I must consider two things or classes of things. The first is whether the Creditors have proved the matters specified in s.52(1) of the Act and the relevant rules of the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) (Bankruptcy Rules). Mr de Robillard here submits that the material on which the Creditors rely proves no debt. The basis of that submission is what appears to have been a typographical error in the spelling of Mr de Robillard’s name in the Form of Judgment; it incorrectly included the letter “i” in Mr de Robillard’s name so as to read “Christian Roger De Robilliard” (emphasis added). Given the relatively minor difference between the names “de Robillard” and “de Robilliard”, I will in these reasons identify the incorrectly spelled name as “de ROBILLIARD”, and the correctly spelled name “de Robillard”.

Ratio Decidendi

Legal Principle Established

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