FEDERAL COURT OF AUSTRALIA
Houten v Lennon [2025] FCA 252
File number: VID 268 of 2024 Judgment of: ROFE J Date of judgment: 25 March 2025 Catchwords: PRACTICE AND PROCEDURE – Registrars – review of
Registrar’s power to make sequestration order – review is ahearing de novo – meaning of “hearing de novo”
PRACTICE AND PROCEDURE – whether leave to re-open should be granted – orders not yet entered –petitioning creditors were under a mistaken apprehension of the law – petitioning creditors sought to adduce fresh evidence – respondents conducted part of their case on mistaken belief about the claim – whether interests of justice require the matter to be re-opened
BANKRUPTCY – sequestration orders – necessity for fresh compliance with s 52(1) of the Bankruptcy Act 1966 (Cth)Legislation: Bankruptcy Act 1966 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: Bechara v Bates (2021) 388 ALR 414
Bullen v Mangano [2024] FCA 1199
Harris v Caladine (1991) 172 CLR 84
Hughes v Hill [1937] SASR 285
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Roderick Group Pty Ltd (in liq), in the matter of Vlahos v Vlahos [2024] FedCFamC2G 1439
Smith v New South Wales Bar Association (1992) 176 CLR 256
Totev v Sfar (2008) 167 FCR 193
Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471
Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 79 Date of last submissions: 14 March 2025 Date of hearing: 27 February 2025 and 17 March 2025 Counsel for the Applicants: A Purton (17 March 2025 only) Solicitor for the Applicants: McDonald Legal Counsel for the Respondent: The respondent appeared in person Solicitor for the Respondent: A B Legal ORDERS
VID 268 of 2024 BETWEEN: ADAM HOUTEN
First Applicant
VERONICA FINARELLI
Second Applicant
AND: PATRICK LENNON
Respondent
ORDER MADE BY:
ROFE J
DATE OF ORDER:
25 MARCH 2025
THE COURT ORDERS THAT:
1.The interim application for review filed by the respondent on 14 January 2025 is allowed.
2.The sequestration order made on 10 December 2024 is set aside.
3.The creditor’s petition dated 18 June 2024 is dismissed.
4.Subject to any further order of the Court, the question of costs, including the costs and expenses of the trustee in bankruptcy, Mr Stephen Dixon, will be determined on the papers as follows:
(a)The petitioning creditors are to provide a copy of these reasons to Mr Stephen Dixon of Hamilton Murphy Advisory, Level 21, 114 William Street, Melbourne, VIC 3000 within 5 days of the date of this order.
(b)The petitioning creditors, the respondent and Mr Dixon may each file and serve written submissions as to all consequential orders, including as to the costs and disbursements incurred by Mr Dixon in his administration of the…
Continue reading Houten v Lennon
Sign in free to access the full text
- AGLC
- Houten v Lennon [2025] FCA 252
- Case
- [2025] FCA 252
- Decision Date
CaseChat Overview and Summary
The court refused to reopen the review hearing, finding that the interests of justice did not favour reopening the case. The court held that the Petitioning Creditors' attempt to introduce fresh evidence after the hearing concluded and the decision was reserved was highly unsatisfactory. The court emphasised that the review was indeed a de novo hearing, requiring a fresh look at the facts and law, and that error by the Registrar did not need to be demonstrated for success in the review. The Petitioning Creditors' mistaken apprehension of the law and their attempt to introduce new evidence post-hearing did not justify reopening the case.
Orders
Orders of the court
1. The interim application for review filed by the respondent on 14 January 2025 is allowed.
2. The sequestration order made on 10 December 2024 is set aside.
3. The creditor’s petition dated 18 June 2024 is dismissed.
4. Subject to any further order of the Court, the question of costs, including the costs and expenses of the trustee in bankruptcy, Mr Stephen Dixon, will be determined on the papers as follows:
(a) The petitioning creditors are to provide a copy of these reasons to Mr Stephen Dixon of Hamilton Murphy Advisory, Level 21, 114 William Street, Melbourne, VIC 3000 within 5 days of the date of this order.
(b) The petitioning creditors, the respondent and Mr Dixon may each file and serve written submissions as to all consequential orders, including as to the costs and disbursements incurred by Mr Dixon in his administration of the bankrupt estate of the respondent, of no more than 5 pages. The submissions must be provided within 28 days of the publication of these reasons and with a right of reply also limited to 5 pages to be filed and served within a further period of 14 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Mr Patrick Lennon seeks to set aside a sequestration order made by a Registrar in respect of Mr Lennon’s estate on 10 December 2024. The applicants, Mr Adam Houten and Ms Veronica Finarelli, are the Petitioning Creditors. Mr Lennon seeks a review of the Registrar’s sequestration order. A review is provided for under s 35A(5)–(6) of the Federal Court of Australia Act 1976 (Cth). Such a review is conducted de novo: Harris v Caladine (1991) 172 CLR 84 at 95 (per Mason CJ and Deane J); Totev v Sfar (2008) 167 FCR 193 at [52] (per Bennett J) and [91] (per Cowdroy J); Bechara v Bates (2021) 388 ALR 414 at [17]–[21] (per Allsop CJ, Markovic and Colvin JJ); Zdrilic v Hickie (2016) 246 FCR 532 at [16]–[29] (per Katzmann, Farrell and Markovic JJ). This means that the judge takes a “fresh look” at the issues by way of a complete rehearing of the facts and the law. Error does not need to be demonstrated on the part of the Registrar for success in the review. The review application was heard on 27 February 2025 (first hearing). The parties were informed that I would hand down my reasons at 4.15 pm on 28 February 2025. At midday on 28 February 2025, my Chambers received an email from the Petitioning Creditors’ solicitors attaching a proof of debt signed by Maria Lantouris and dated 28 February 2025 (28 February Email). The proof of debt gave details of the debt as being in relation to orders of the Supreme and County Courts and the Court of Appeal in three proceedings, the latest dated 16 June 2022. The 28 February Email stated that the creditors sought leave to “produce and rely on further evidence” in the review application. Rather than engaging in further correspondence, I set the matter down to return on 17 March 2025. My Chambers sent an email to the parties in response which stated:Her Honour considers the way in which the Proof of Debt has been presented to chambers to be highly unsatisfactory. The document is not supported by any affidavit and has been received after the hearing has concluded and the decision was reserved. The parties are put on notice that any further attempts are not appropriate. On 17 March 2025, I heard the creditors’ application to re-open the review application (second hearing). 2. Re-opening case Counsel for the Petitioning Creditors, Mr Purton, appeared only at the second hearing. Mr Purton sought to re-open the review hearing on two bases. The first, a mistaken apprehension of the law, and the second, to adduce fresh evidence, being the proof of debt attached to the 28 February Email, which was not in evidence and was said not to be available to the Petitioning Creditors at the time of the first hearing. As the submission developed, the mistaken apprehension of the law transpired to be a misapprehension in relation to two different aspects of law. The first being the creditors’ misapprehension that the review hearing was not a hearing de novo, but rather an application to annul the bankruptcy pursuant to ss 43(1) and 153A of the Bankruptcy Act 1966 (Cth), requiring exceptional circumstances to be demonstrated. The second being a misapprehension at large as to the extent of evidence required to be put on by a party seeking to satisfy the Court for the purposes of s 52(2)(a) that they were able to pay their debts.