Hirning v Samson - [2012] QCATA 221

CITATION:

Hirning v Samson [2012] QCATA 221

PARTIES:	Geoff Hirning (Appellant)
v
Craig Samson t/as Look and Listen (Respondent)

APPLICATION NUMBER:

APL481-11

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr J R Forbes, Member

DELIVERED ON:

5 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for leave to appeal is refused.

CATCHWORDS:

BANKRUPTCY – DISCHARGE OF BANKRUPT AND ANNULMENT OF SEQUESTRATION ORDER – ANNULMENT OF BANKRUPTCY – EFFECT OF ANNULMENT OR RELEASE – GENERALLY – where minor civil claim for consumer debt – where primary decision in favour of present Respondent – where Appellant declared bankrupt prior to Tribunal proceedings – where Appellant’s bankruptcy annulled by composition with creditors prior to Tribunal proceedings – where Respondent not notified of bankruptcy – where Respondent did not prove in bankruptcy – whether in circumstances Respondent entitled to recover debt – whether debt revived – whether award vitiated by Bankruptcy Act 1966 (Cth)

Bankruptcy Act 1966 (Cth), ss 58, 64A, 73, 74, 154, 265
Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142

Boyapati v Rockefeller Management Corporation [2008] FCA 995

Cameron v Cole (1944) 68 CLR 571

Drew v Bundaberg Regional Council [2011] QCA 359
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Raupach v McDonald [2010] NSWSC 1326
Re Coyle (1993) 42 FCR 72
Re Guica; Ex parte the Bankrupts (1986) 10 FCR 59

Re Taylor; ex parte Taylor (1898) 8 BC (NSW) 50

Theissbacher v MacGregor Garrick & Co [1993] 2 Qd R 223
Union Club v Lord Andrew Charles Robert Battenberg [2006] NSWCA 72

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).

REASONS FOR DECISION

The Appellant Geoff Hirning is an audiophile who expects the highest quality in his listening devices. In March 2009 he engaged the Respondent Craig Samson to supply and install Bose and Sonos sound reproduction equipment at his Ashgrove residence. Hirning made a part payment of $4,000. In May 2012 Samson commenced proceedings in the Tribunal for the balance, $4,842. After a default judgment was set aside, the Tribunal awarded Samson the amount claimed and filing fee of $90. The Tribunal also ordered the Respondent to pay the Appellant $343; that order is not in question.

Does the Bankruptcy Act Vitiate the Award?

Hirning now seeks leave to appeal[1] upon the ground that the subject debt was compromised by a composition with creditors, according to section 73 of the Bankruptcy Act 1966 (Cth) (“BA Act”).
[1] Queensland Civil and Administrative Tribunal Act 2009, s 142(3).
A sequestration order over Hirning’s estate was made on 22 April 2009. Contrary to section 265(1)(ca) and (f) of the BA Act, Hirning failed to inform his trustee of the remaining debt to Samson. The reason for that omission, it seems, is that Hirning, having decided ex parte that Samson…

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 Hirning v Samson

Details

AGLC: Hirning v Samson [2012] QCATA 221
Case: [2012] QCATA 221
Decision Date: 5 November 2012

CaseChat Overview and Summary

The matter of Hirning v Samson involved a dispute concerning the revival of a debt after the annulment of a bankruptcy. The case was heard in the Federal Court of Australia. The Appellant, Hirning, had been declared bankrupt prior to proceedings in the Federal Circuit Court of Australia related to a minor civil claim for a consumer debt. After the Appellant’s bankruptcy was annulled by a composition with creditors, the Respondent, Samson, sought to recover the debt. The primary decision favoured the Respondent, and the Appellant subsequently sought to appeal the decision.

The legal issues before the court involved whether the debt could be recovered by the Respondent after the annulment of the bankruptcy and whether the debt was revived under these circumstances. The Appellant argued that the debt was extinguished by the annulment of the bankruptcy, while the Respondent contended that the debt was revived and thus recoverable. The court was required to determine whether the Respondent was entitled to recover the debt under the relevant provisions of the Bankruptcy Act 1966 (Cth).

The court held that the debt was not revived by the annulment of the bankruptcy. The reasoning was that the annulment of the bankruptcy did not equate to a discharge of the bankrupt, and the Respondent had not participated in the bankruptcy proceedings or proved their debt. Therefore, the debt remained extinguished. The court found that the Respondent's claim was not affected by the annulment of the bankruptcy, and the award remained valid. The court concluded that the Appellant's appeal was without merit, and the application for leave to appeal was refused.

The court did not make any further orders beyond refusing the application for leave to appeal.

Orders

Orders of the court

1. The application for leave to appeal is refused.

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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