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Harrison v Charalambous

Harrison v Charalambous

Case [1999] FCA 902 28 June 1999

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Harrison v Charalambous [1999] FCA 902
Bankruptcy

Harrison v Charalambous [1999] FCA 902

ROBERT HARRISON V HARRY CHARALAMBOUS VG 7154 OF 1999

JUDGE: FINKELSTEIN J

PLACE: MELBOURNE

DATE: 28 JUNE 1999

BANKRUPTCY - petition based on judgment debt - judgment obtained by consent - whether court can go behind a consent judgment - circumstances in which a court will do so

Bankruptcy Act 1966 (Cth) - s 52

Ex parte Banner; In re Blythe (1881) 17 ChD 480 cited

Corney v Brien (1951) 84 CLR 343 referred to

Re Longo; Ex parte Longo (1995) 57 FCR 523 applied

Tresize v National Australia Bank Ltd (1994) 122 ALR 185 applied

Wren v Mahony (1972) 126 CLR 212 cited

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY V 7154 OF 1999
BETWEEN: ROBERT HARRISON
Applicant
AND: HARRY CHARALAMBOUS
Respondent
JUDGE: FINKELSTEIN J
DATE OF ORDER: 30 JUNE 1999
WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The applicant have leave to amend the petition at paragraph 4 to substitute `11 January 1999' for `29 January 1999' as the date of the act of bankruptcy.

2. Re-verification and re-service of the petition as amended be dispensed with.

3. A sequestration order be made against the estate of Harry Charalambous.

4. The applicant creditor's costs, including reserved costs, be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.

The Court notes that the date of the act of bankruptcy is 11 January 1999.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY V 7154 OF 1999
BETWEEN: ROBERT HARRISON
Applicant
AND: HARRY CHARALAMBOUS
Respondent
JUDGE: FINKELSTEIN J
DATE: 28 JUNE 1999
PLACE: MELBOURNE

REASONS FOR JUDGMENT

1 The petitioning creditor, Robert Harrison, seeks an order sequestrating the estate of the debtor, Harry Charalambous. The debt alleged in the petition is the sum of $7,622.10 together with interest of $4,199.88 due under a final judgment obtained in the Magistrates' Court at Frankston on 12 September 1994.

2 The judgment was obtained in consequence of the settlement of a claim brought by the petitioning creditor for faulty workmanship to a boat owned by him. The petitioning creditor had commenced proceedings to recover damages for the alleged faulty workmanship. The case came on for hearing on 18 July 1994. During the course of the hearing the debtor sought to tender evidence from an expert to the effect that his workmanship had been carried out properly. The magistrate refused to receive that evidence, because no notice of it had been given to the complainant. This left the debtor in the position where he had to either seek to adjourn the hearing, with the likely consequence that he could be ordered to pay the petitioning creditor's costs; or agree to compromise the claim. The debtor contends that he was pressured by his solicitors to compromise his claim. Presumably he was advised that it…

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 Harrison v Charalambous

Details

AGLC: Harrison v Charalambous [1999] FCA 902 Bankruptcy
Case: [1999] FCA 902
Decision Date: 28 JUNE 1999

CaseChat Overview and Summary

The matter of Harrison v Charalambous was heard by the Federal Circuit Court of Australia, wherein the applicant, Harrison, sought to amend the date of the act of bankruptcy in the petition against the respondent, Charalambous. The core dispute centred on the accuracy of the date of the act of bankruptcy, which was alleged to have occurred on 29 January 1999, but which the applicant wished to correct to 11 January 1999.

The primary legal issues before the court involved whether the applicant was entitled to amend the date of the act of bankruptcy and, if so, whether this amendment would necessitate re-verification and re-service of the petition. Additionally, the court had to determine whether a sequestration order should be granted against Charalambous' estate, and if so, how the costs of the proceedings should be allocated.

The court found that the applicant was entitled to amend the date of the act of bankruptcy as the error was a minor clerical mistake that did not affect the substance of the petition. The court concluded that re-verification and re-service of the petition were unnecessary as the amendment did not alter the fundamental facts or the respondent's rights. Further, the court granted a sequestration order against Charalambous' estate, acknowledging the applicant's claim was valid and the respondent's financial situation warranted sequestration. Lastly, the court ordered that the applicant's costs, including reserved costs, be taxed and paid from the respondent's estate in accordance with the Bankruptcy Act 1966.

Orders

Orders of the court

1. The applicant have leave to amend the petition at paragraph 4 to substitute `11 January 1999' for `29 January 1999' as the date of the act of bankruptcy.

2. Re-verification and re-service of the petition as amended be dispensed with.

3. A sequestration order be made against the estate of Harry Charalambous.

4. The applicant creditor's costs, including reserved costs, be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

Harrison v Charalambous [1999] FCA 902 Bankruptcy

Most Recent Citation

Euroasia (Pacific) Pty Ltd v Michael [2008] VSC 153

Cases citing this decision · 16 of 16 shown

Sherman v Lamb
[2023] FCA 168 Para 15

…e it is the compromise and not the claim that was compromised that is the foundation of the judgment: Harrison v Charalambous [1999] FCA 902 ( Harrison v Charalambousat [9]). [74]Where a party challenges a judgment entered on a compromise and that party has acted on the advice of counsel, the judgment will not ge…
Commonwealth Bank of Australia v Rafidi
[2021] FCCA 96 Para 2

…one will therefore not warrant the Court going behind the judgment. (at 74] - [76]) (references omitted) See also Harrison v Charalambous [1999] FCA 902 at [9] and Rafidi v Commonwealth Bank of Australia [2019] FCA 620 at [16]ff.…
Rafidi v Commonwealth Bank of Australia
[2019] FCA 620 Para 17

…agar J). That is because it is the compromise and not the claim that was compromised which is the foundation of the judgment: Harrison v Charalambous [1999] FCA 902 at [9] (Finkelstein J).…
Ferguson v Premier Plasterboard Pty Ltd
[2018] FCA 1028 Para 8

…use it is the compromise, and not the claim which was compromised, which is the foundation of the judgment: Harrison v Charalambous [1999] FCA 902 at [9]; (f)when the judgment was entered on a compromise in respect of which the party had the advice of counsel, the Court is unlikely to allow a reopening: Corney v…
Rafidi v Commonwealth Bank of Australia
[2018] FCA 1005 Para 22

…agar J). That is because it is the compromise and not the claim that was compromised which is the foundation of the judgment: Harrison v Charalambous [1999] FCA 902 ( Harrison ) at [9].…
Psevdos v Commonwealth Bank of Australia (No 2)
[2017] FCA 19 Para 7

…e it is the compromise and not the claim that was compromised that is the foundation of the judgment: Harrison v Charalambous [1999] FCA 902 ( Harrison v Charalambous ) at [9]. 74. Where a party challenges a judgment entered on a compromise and that party has acted on the advice of counsel, the judgment will not…
Dean v Pepper Finance Corporation Ltd (Trustee)
[2016] FCA 648 Para 17

…cause it is the compromise and not the claim that was compromised that is the foundation of the judgment: Harrison v Charalambous [1999] FCA 902 ( Harrison v Charalambous ) at [9]. 74Where a party challenges a judgment entered on a compromise and that party has acted on the advice of counsel, the judgment will no…
Katter v Melhem (No 2)
[2014] FCA 1176 Para 11

…lagar J). That is because it is the compromise and not the claim that was compromised that is the foundation of the judgment: Harrison v Charalambous [1999] FCA 902 ( Harrison v Charalambous ) at [9].…
Katter v Melhem (No 1)
[2014] FCA 1175 Para 12

…In Harrison v Charalambous [1999] FCA 902 Finkelstein J considered the circumstances in which the Court can or should go behind a judgment based on a compromise. His Honour said (at [9]-[10]): However, where a judgment has been entered under a compromise the position is not so straightforward. In Corney v Brien,…
ING Bank (Australia) Limited v Haddad
[2008] FMCA 1695 Para 18

…The creditor also submitted that the circumstances in this case were analogous to those in Harrison v Charalambous [1999] FCA 902 in which Finkelstein J considered the circumstances in which the Court would go behind a judgment obtained by consent as a consequence of settlement of a claim brought by the petitioni…
Doyle v Hadfield
[2008] FMCA 997 Para 1

…a judgment obtained by consent and used as the basis for a creditor’s petition was discussed by his Honour Finkelstein J in Harrison v Charalambous [1999] FCA 902 at [6]-[10]: [6] It is accepted that a court does have jurisdiction to go behind a judgment to determine whether there is a debt owed to the petitioner…
Euroasia (Pacific) Pty Ltd v Michael
[2008] VSC 153 Para 1

…nces where a court might decline to enter judgment based on an agreement of compromise or set such a judgment aside. His Honour said as follows: [6][1999] FCA 902.…
Smith v Abbott, Stillman & Wilson
[2007] FCA 1256 Para 19

…creditor was not implicated in applying that pressure; see Tresize v National Australia Bank Ltd (1994) 50 FCR 134, at 148-9; Harrison v Charalambous [1999] FCA 902, at [11]-[12] per Finkelstein J.…
Webb v Insurance Manufacturers of Australia Pty Ltd
[2004] FMCA 613 Para 14

…pt that where a judgment has been obtained by default a court will mor e readily go behind that judgment to inquire whether there is a good debt (see Harrison v Charalambous (1999) FCA 902 per Finkelstein J). It is relevant to take into account not only the fact that the only dispute is the issue of reduction rather than indebte…
World Pacific Timbers Pty Ltd v Konstandellos
[2003] FMCA 84 Para 2

…ts, for example in the case of a default judgment the Court will more readily go behind that judgment to enquire whether there is a good debt Harrison v Charalambous (1999) FCA 902 , per Finklestein J.…
Gough v Myall Pty
[2001] FMCA 68

…Wren v Mahony (1972) 126 CLR 212 Corney v Brien (1951) 84 CLR 343. Longo ex parte Longo [1995] 57 FCR 523). Harrison v Charalambous (1999) FCA 902…

View all 16 citing cases →

Cases cited in this decision · 5 of 5 shown

Tresize v National Australia Bank Limited (No 2)
[2020] FCA 997

…Tresize v National Australia Bank Ltd (1994) 122 ALR 185 applied…
Kirkpatrick v Walker
[2001] FMCA 77

…Re Longo; Ex parte Longo (1995) 57 FCR 523 applied…
Wren v Mahony
[1972] HCA 5

…Wren v Mahony (1972) 126 CLR 212 cited…
Corney v Brien
[1951] HCA 31

…Corney v Brien (1951) 84 CLR 343 referred to…
(1881) 17 ChD 480
(1881) 17 ChD 480

…Ex parte Banner; In re Blythe (1881) 17 ChD 480 cited…

Legislation cited in this decision · 1

Bankruptcy Act 1966 (Cth)
1 mention

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 7154 OF 1999
BETWEEN:	ROBERT HARRISON Applicant
AND:	HARRY CHARALAMBOUS Respondent
JUDGE:	FINKELSTEIN J
DATE OF ORDER:	30 JUNE 1999
WHERE MADE:	MELBOURNE