Harrison v ERIKSSON - [2015] FCCA 2963

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRISON v ERIKSSON

[2015] FCCA 2963

Catchwords:
BANKRUPTCY – Review of Registrar’s decision – issues regarding service including orders by Registrar for substituted service – long delay by debtor filing review application – alleged negligence in advice provided to debtor about prescribed time within which to lodge review application.

Legislation:

Bankruptcy Act 1966, ss.43, 52

Federal Circuit Court of Australia Act1999, s.104(2)
Federal Circuit Court (Bankruptcy) Rules2006, r.2.03

Grundy v Wattyl Pty Ltd [2002] FCA 1480
Mosman Municipal Council v Kelly (2011) 9 ABC (NS) 254; [2011] FCA 1166
Napiat Pty Ltd v Salfinger (No.7) (2011) 202 FCR 264
O’Meara v Hitwise Pty Ltd (2007) 160 FCR 518
Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107
Totev v Sfar (2008) 167 FCR 193
Re Vincent ex parte State Bank of NSW Ltd (1996) 71 FCR 58

Applicant:

RACHEL HARRISON

Respondent:

CHRISTOPHER ERIKSSON

File Number:

CAG 60 of 2014

Judgment of:

Judge Neville

Hearing date:

19 March 2015

Date of Last Submission:

9 April 2015

Delivered at:

Canberra

Delivered on:

12 November 2015

REPRESENTATION

Counsel for the Applicant:

Self represented

Solicitors for the Applicant:

Counsel for the Respondent:

Dr D Hassall

Solicitors for the Respondent:

Capital Lawyers, Canberra

ORDERS

The extension of time Application be refused.
The Application to Review be dismissed.
The Applicant is to pay the Respondent costs out of the bankrupt’s estate.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAG 60 of 2014

RACHEL HARRISON

Applicant

And

CHRISTOPHER ERIKSSON

Respondent

REASONS FOR JUDGMENT

Introduction

This matter is utterly disproportionate – in every respect. The amount being pursued by the petitioning creditor is for a sum of $6,127.00 (plus interest), pursuant to orders made against Ms Harrison in the ACT Civil and Administrative Tribunal on 18^th March 2013.
In making such a comment at the outset, or at any other time, is not to indicate that debts should not be paid, or that creditors ought not pursue debtors. Rather, for such a sum, the volume of material filed and the obvious labour expended by the petitioning creditor (or rather his lawyers and Counsel) has been extraordinary, and disproportionate. As well, the affidavit and oral evidence costs associated with an expert witness from Sydney (Mr Klein), an expert in “digital forensic examination, electronic discovery … and related services” I surmise by themselves would likely be close to if not would exceed the amount in issue between the parties.
Likewise, the petitioning creditor’s highly experienced Counsel’s submissions were extensive, and therefore would likely not have been a cheap exercise: the primary submissions (single spaced) ran to 19 pages, while the submissions in reply (also single spaced), ran to a further 8 pages.
For her part, Ms Harrison filed a further (and extensive) affidavit on 13^th February, and 3 separate sets of submissions, on 17^th, 19^th and 26^th March 2015.
A [primary] Court Book was provided (by the Respondent creditor), which contained…

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 ERIKSSON

Details

AGLC: Harrison v ERIKSSON [2015] FCCA 2963
Case: [2015] FCCA 2963
Decision Date: 12 November 2015

CaseChat Overview and Summary

In the matter of *Harrison v ERIKSSON*, heard before Judge Neville, the dispute concerned an application to set aside a default judgment. The applicant, Mr Harrison, sought to have a default judgment entered against him in favour of the respondent, Ms Eriksson, vacated.

The primary legal issue before the court was whether the default judgment should be set aside. This required the court to consider the principles governing the setting aside of default judgments, including whether the applicant had a meritorious defence to the claim and whether he had provided a sufficient explanation for his failure to file a defence within the prescribed time.

Judge Neville applied the well-established principles for setting aside default judgments. His Honour noted that while there is a discretion to set aside such judgments, it is not exercised as of right. The court must be satisfied that there is a good defence on the merits and that the applicant has acted with reasonable diligence and provided a satisfactory explanation for the delay. In this instance, the court found that the applicant had failed to provide a sufficiently compelling explanation for his failure to file a defence and had not demonstrated a defence with sufficient merit to warrant setting aside the default judgment.

Consequently, the application to set aside the default judgment was dismissed.

Orders