Janover v Muto - [2020] FCCA 1351

FEDERAL CIRCUIT COURT OF AUSTRALIA

JANOVER v MUTO

[2020] FCCA 1351

Catchwords:
BANKRUPTCY – Application for review of registrar’s decision –service of bankruptcy notice and creditor’s petition effected – whether debt truly owing – application dismissed – no maters of principle.

Legislation:

Bankruptcy Act 1966 (Cth), s.43

Bankruptcy Regulations 1966 (Cth), reg.16.01

Federal Circuit Court of Australia Act 1999 (Cth), s.43(2)(b)

Local Government Act 1989 (Vic).

Victorian Civil and Administrative Tribunal Act1998 (Vic), Sch.1, cl.46F

Cases cited:

Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8

Wren v Mahony [1972] HCA 5; (1972) 126 CLR 212
Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28

Shaw v Yarranova Pty Ltd [2017] FCA FC 88

Muto v Shepparton City Council [2018] VSCA 73
Muto v The City of Greater Shepparton & Ors [2018] VSCA 75
Muto v Shepparton City Council [2018] VSCA 274
Dobson v Muto (Review and Regulation) (No. 3) [2019] VCAT 167
Dobson v Muto (Review and Regulation) (No. 4) [2019] VCAT 439

Applicant:

LEWIS JANOVER

Respondent:

MILVAN MUTO

File Number:

MLG 1291 of 2019

Judgment of:

Judge Riethmuller

Hearing dates:

28 November 2019 and 10 December 2019

Date of Last Submission:

13 December 2019

Delivered at:

Melbourne

Delivered on:

29 May 2020

REPRESENTATION

Solicitors for the Applicant:

Lewis Allen Janover Solicitor & Consultant

The Respondent appeared in person.

ORDERS

The application for review of the Registrar’s decision dated 17 October 2019 be dismissed.
The Applicant’s costs be costs in the Respondent’s bankruptcy.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1291 of 2019

LEWIS JANOVER

Applicant

And

MILVAN MUTO

Respondent

REASONS FOR JUDGMENT

Background

On 26 September 2019 a Registrar made a sequestration order bankrupting Milvan Muto (‘the respondent’). The respondent seeks a review of that decision, including a review of two ancillary orders: (i) leave to amend the Creditors Petition to substitute 15 April 2019 as the date of the commission of the act of bankruptcy; and (ii) dispensing with re-verification and re-service. Applications for review of a decision of a Registrar are heard de novo.
The respondent raises four substantive issues, summarized as follows:
a)The respondent alleges that he was not served with the Bankruptcy Notice, upon which the Petition was founded;
b)The respondent says that he was not served appropriately with the Creditor’s Petition;
c)Whether the applicant should be permitted to amend the date of the act of bankruptcy as appears in the Petition; and
d)The respondent disputes the underlying debt upon which the Bankruptcy Notice is based.
In the event that the respondent is unsuccessful in the above points, he requests that the court exercise its discretion to not make a sequestration order.
There is no dispute with respect to compliance with other technical requirements of the legislation (such as the filing of an affidavit of debt, etc).

Procedural history

The matter commenced in this Court when the applicant filed a Creditor’s Petition on 1 May 2019 seeking a sequestration order, pursuant to section 43 of the Bankruptcy Act 1966

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 Janover v Muto

Details

AGLC: Janover v Muto [2020] FCCA 1351
Case: [2020] FCCA 1351
Decision Date: 29 May 2020

CaseChat Overview and Summary

In *Janover v Muto*, the applicant sought a review of a registrar's decision concerning a bankruptcy notice and creditor's petition. The core of the dispute revolved around whether the debt underpinning the bankruptcy proceedings was genuinely owed by the applicant to the respondent.

The court was required to determine whether the registrar erred in finding that the debt was truly owing and, consequently, in dismissing the applicant's application to set aside the bankruptcy notice and creditor's petition. The central legal issue was the existence and enforceability of the debt in question.

Judge Riethmuller dismissed the application, finding no matters of principle that would warrant interference with the registrar's decision. The court was satisfied that the debt was genuinely owing, and therefore, the bankruptcy proceedings could validly continue.

Orders