ING Bank Australia Ltd v Athanasakis - [2010] FMCA 307

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ING BANK AUSTRALIA LTD v ATHANASAKIS

[2010] FMCA 307

BANKRUPTCY – Application in a Case seeking orders that a Notice to Produce be set aside – whether amount claimed in Bankruptcy Notice was an overstatement – mortgagee in possession – claimed failure to account for occupation rent during possession – whether the estimated value of secured property is not reasonable.

Bankruptcy Act 1966, ss.33, 41, 44
Conveyancing Act 1919 (NSW)

Federal Court Rules, o.13, r.2
Federal Magistrates Court Rules 2001 (Cth), rr.15A.17

Adams v Lambert (2006) 228 CLR 409
Australia & New Zealand Banking Group v Coutts [2003] FCA 968
Bailey v Beagle Management Pty Ltd [2001] FCA 60
Biron Capital Ltd v Anstee [2005] FMCA 1100
Chaplin v Young (1864) 33 BEAV 330
Deputy Commissioner of Taxation v Cumins [No.5] (2008) FCA 794
GR Finance Limited v Francis Waldron [2009] FMCA 418
Green v Solomon [2001] FCA 698
Hudson v Donald & Whalan [1997] FCA 852
MacDonald v Official Trustee in Bankruptcy [2001] FCA 140
National Australia Bank Ltd v Westbrook [2000] FCA 246
O’Shea & Anor v Athanasakis & Ors [2009] NSWSC 1150
Re O’Leary and Anor; Ex Parte Bayne and Anor (1985) 61 ALR 674
Re Button; ex parte Voss [1905] 1KB 602
Re Wiggan; Ex Parte Credit Assistance Pty Ltd [1979] 30 ALR 443
Seven Network Ltd v News Ltd (No.11) [2006] FCA 174
St George Wholesale Finance Pty Ltd v Spalla (2000) 181 ALR 682
Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90
Trustee of the Franciscan Missionaries of Mary v Weir

Applicant:

ING BANK AUSTRALIA LTD

Respondent:

HELEN ATHANASAKIS

File Number:

SYG 2887 of 2009

Judgment of:

Lloyd-Jones FM

Hearing date:

23 February 2010

Delivered at:

Sydney

Delivered on:

7 May 2010

REPRESENTATION

Counsel for the Applicant:

Ms K Britton

Solicitors for the Applicant:

Gadens Lawyers

Counsel for the Respondent:

Mr D Price

Solicitors for the Respondent:

Horton Rhodes Lawyers

ORDERS

The application to set aside paragraph [1] of the Notice to Produce is dismissed.
The application to set aside paragraphs [2] and [3] of the Notice to Produce is allowed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2887 of 2009

ING BANK AUSTRALIA LTD

Applicant

And

HELEN ATHANASAKIS

Respondent

The proceedings

The Applicant in these proceedings has issued a Creditor’s Petition against Mrs Helen Athanasakis on 25 November 2009. A Notice Stating Grounds of Opposition to the Petition was filed on 3 February 2010. On 4 February 2010, a Notice to Produce was served on the Applicant by the Respondent. On 18 February 2010 the Applicant filed an Application in a Case seeking orders that the Notice to Produce dated 4 February 2010 be set aside.
The matter was listed before a Registrar on 23 February 2010 at which time the parties sought to have it referred to this Court on the basis that the Applicant wished to have both the Application set-aside, the Notice to Produce and the Creditor’s Petition heard together.…

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.

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Details

Case: [2010] FMCA 307
Decision Date: 7 May 2010

CaseChat Overview and Summary

The dispute before the court was between ING Bank Australia Ltd and Mr Athanasakis. The bank sought an order to compel Mr Athanasakis to produce certain documents. Mr Athanasakis resisted the application, arguing that the documents were not relevant to the proceedings and that the request was an abuse of the court process. The matter was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court were whether the documents requested were relevant to the proceedings and whether the application to produce them constituted an abuse of the court process. The court had to consider the nature of the documents, the relevance of the documents to the proceedings, and the proportionality of the request.

The court found that the documents requested were relevant to the proceedings and that the application did not constitute an abuse of the court process. The court noted that the documents related to the financial dealings between the bank and Mr Athanasakis and were necessary to determine the merits of the case. The court also found that the request was not disproportionate and was necessary to ensure that the proceedings were conducted fairly and efficiently.

The court dismissed the application to set aside the request for the first set of documents, but allowed the application to set aside the request for the second and third sets of documents. The court found that the second and third sets of documents were not relevant to the proceedings and that the request for those documents constituted an abuse of the court process. The court noted that the request was overly broad and that the bank had not demonstrated that the documents were necessary to the proceedings.

Orders

Orders of the court

The application to set aside paragraph [1] of the Notice to Produce is dismissed.

The application to set aside paragraphs [2] and [3] of the Notice to Produce is allowed.

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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