Jeray v Blue Mountains City Council - [2013] FCCA 297

FEDERAL CIRCUIT COURT OF AUSTRALIA

JERAY v BLUE MOUNTAINS CITY COUNCIL

[2013] FCCA 297

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – further declarations sought in respect of conduct of legal representatives of creditor.

PRACTICE AND PROCEDURE – Application in a case seeking to reopen hearing and set aside orders made by consent – Application seeking similar orders as orders made by consent finalising proceedings – Interest in finality of litigation – No reasonable grounds raised to warrant reopening of proceedings – Application in a case dismissed.

Legislation:
Bankruptcy Act 1966 (Cth), s.40(1)

Federal Circuit Court Rules 2001 (Cth) rr.16.05(1),16.05(2),16.05(3)

Cases cited:
Autodesk Inc v Dyason (1993) 176 CLR 300
Dennis v Tubb [2012] FMCA 26
Diver v Neal [2009] NSWCA 115
Elder v Cameron [2007] NSWSC 984
Maritime Union of Australia v Geraldton Port Authority (2001) FCA 434
Russfal Pty Ltd v Tassal Ltd [2007] TASSC 80
State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672

Applicant:

IVAN JERAY

Respondent:

BLUE MOUNTAINS CITY COUNCIL

File Number:

SYG 2274 of 2012

Judgment of:

Judge Lloyd-Jones

Hearing date:

13 May 2013

Delivered at:

Sydney

Delivered on:

16 May 2013

REPRESENTATION

The Applicant:

The Applicant appeared in person

Solicitors for the Respondent:

Mr G. Butterfield of Marsdens

ORDERS

The Application in a Case filed on 1 May 2013 is dismissed.
The Applicant pay the Respondent’s costs and disbursements of and incidental to the Application in a Case filed on 1 May 2013.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2274 of 2012

IVAN JERAY

Applicant

And

BLUE MOUNTAINS CITY COUNCIL

Respondent

REASONS FOR JUDGMENT

Introduction

On 1 May 2013 the applicant, Ivan Jeray (“Jeray”), filed an Application in a Case (the “Interlocutory Application”) in these proceedings seeking the following orders:
1. Leave granted to hear this interlocutory application out of time.
2. Leave granted for the applicant to issue subpoenae [sic] for Ms Emma MacFarlane and Mr Nelson Arias-Alvarez to attend the Court when required with conduct money required only for the cost of a return ticket from Campbelltown to St James railway stations set at no more that $25 per person. Conduct money may be payed to the subpoenaed person upon their arrival to the Court when required. Service of the subpoenae [sic] may be effected by post to the Campbelltown PO Box address of the Marsdens Law Group.
3. Set aside the decision and orders made by District Registrar Wall on November 2012.
4. Set aside bankruptcy notice BN 5792.
5. A declaration that the respondent and its legal representatives have abused the legal system by applying for BN 5792 that was intentionally based on an invalid judgment, which was then issued and served on the applicant.
6. Costs, including the applicant’s time for preparing for and conducting the hearings.
The Interlocutory Application was referred to this Court from the Registrar’s Bankruptcy List on the morning of 13 May 2013. Jeray…

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: [2013] FCCA 297
Decision Date: 16 May 2013

CaseChat Overview and Summary

Jeray v Blue Mountains City Council concerned an application brought by Mr. Jeray seeking to set aside a bankruptcy notice issued by the Blue Mountains City Council. Mr. Jeray also sought further declarations regarding the conduct of the Council's legal representatives. The matter came before Lloyd-Jones J in the Federal Court of Australia.

The primary legal issues before the Court were whether the bankruptcy notice should be set aside, and whether declarations should be made concerning the conduct of the Council's legal representatives. Crucially, Mr. Jeray sought to reopen a hearing and set aside orders that had been made by consent, which had the effect of finalising the proceedings between the parties.

Lloyd-Jones J dismissed Mr. Jeray's application, finding that there were no reasonable grounds to warrant reopening the proceedings. The Court emphasised the strong interest in the finality of litigation and concluded that the application lacked merit. Consequently, the Court made no orders setting aside the bankruptcy notice or granting the declarations sought.

Orders