Jeevaratnam v Combis - [2020] FCCA 746

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEEVARATNAM & ANOR v COMBIS & ANOR

[2020] FCCA 746

Catchwords:
BANKRUPTCY – Application by respondents for summary dismissal of Applicants’ claims – Applicants’ claim not easy to construe and in part based on misunderstanding of the law – Applicants seeking standing to litigate case in County Court of Victoria – Applicants facing insuperable difficulties in any event – where the Applicants have no reasonable prospect of success – Application dismissed.

Legislation:

Bankruptcy Act 1966 (Cth), s.179
Federal Circuit Court of Australia Act 1999 (Cth), s.17A

First Applicant:

KANESARATNAM JEEVARATNAM

Second Applicant:

JANANI JEEVARATNAM

First Respondent:

NICK JIM COMBIS

Second Respondent:

ROBYN ERSKINE

File Number:

MLG 539 of 2020

Judgment of:

Judge Burchardt

Hearing date:

27 March 2020

Date of Last Submission:

27 March 2020

Delivered at:

Dandenong

Delivered on:

3 April 2020

REPRESENTATION

Advocate for the Applicants:

Self-represented

Solicitors for the Applicants:

Not applicable

Advocate for the First Respondent:

Mr Williams

Solicitors for the First Respondent:

Colin Biggers & Paisley

Advocate for the Second Respondent:

Ms Lucas

Solicitors for the Second Respondent:

Piper Alderman

ORDERS

The Form B2 Application filed by the Applicant on 17 February 2020 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLG 539 of 2020

KANESARATNAM JEEVARATNAM

First Applicant

JANANI JEEVARATNAM

Second Applicant

And

NICK JIM COMBIS

First Respondent

ROBYN ERSKINE

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an application filed on 17 February 2020, the applicant seeks relief that clearly arises out of an action for possession taken against himself and his wife in relation to their matrimonial home. The relief sought in the application is that a judgment obtained by default in a case in the County Court of Victoria be set aside and the matter heard and determined according to law. Interrelated with that application is an application that the trustees give consent to Mr and Mrs Jeevaratnam so they will have standing to contest the case in the County Court of Victoria.
When the matter came before the Court on 2 March 2020, I granted leave to the applicants, who were represented by counsel on that occasion, to file and serve any amended application and affidavits in support on or before 10 March 2020. The applicants did not file any such material, so the matter returned to Court on 12 March 2020, at which time I set it down for Hearing on 27 March 2020. That Hearing was, owing to the exigencies of distance and the circumstances of the COVID-19 outbreak, heard in open court, but with all parties appearing by telephone.
It should be noticed in parenthesis that on 2 March 2020, Her Honour Judge Marks in the County Court of Victoria made orders, the relevant effect of which was that should Mr and Mrs Jeevaratnam not file any evidence by 4:00pm on 30 March 2020 that they had standing to make their application, their then extant application to set aside a County Court judgment would be dismissed with costs.
In his affidavit filed…

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: [2020] FCCA 746
Decision Date: 3 April 2020

CaseChat Overview and Summary

The applicants, Mr. and Mrs. Jeevaratnam, sought to bring proceedings in the County Court of Victoria, alleging that the respondents, Mr. and Mrs. Combis, had engaged in fraudulent conduct. The respondents applied for summary dismissal of these claims, arguing that the applicants had no reasonable prospect of success.

The central legal issue before the court was whether the applicants' claims were so lacking in merit that they should be summarily dismissed. This required the court to assess the applicants' standing to bring the proceedings and the substantive legal basis of their allegations of fraud.

Judge Burchardt found that the applicants' claims were difficult to understand and appeared to be based on a misunderstanding of relevant legal principles. The court concluded that the applicants faced "insuperable difficulties" in pursuing their case and that there was no reasonable prospect of them succeeding. Consequently, the application for summary dismissal was dismissed.

Orders