Jia v Wollgramm-Tan - [2011] FMCA 38

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JIA v WOLLGRAMM-TAN

[2011] FMCA 38

BANKRUPTCY – Application opposing a Creditor’s Petition – whether the Court should look behind the judgment debt – principles considered – debt did not exist at the time judgment was entered – Creditor’s Petition dismissed.

Bankruptcy Act 1966 (Cth), ss.52(1)(c), 52(2)(b)

Boglari v Coadys [2009] FCA 1398
Commonwealth Bank of Australia v Jeans [2005] FCA 569
Corney v Brien (1951) 84 CLR 343
Ex parte Lennox; Re Lennox (1885) 10 Ch App 317
Joosse vCommissioner of Taxation [2004] FCAFC 245
Re Flatau; ex parte Scotch Whiskey Distillers Ltd (1888) 22 QBD 83
Richardson v Leonard Cohen & Co [2008] FCA 308
Udovenko v Mitchell (1997) 79 FCR 418
Wren v Mahoney (1972) 126 CLR 212

Applicant:

YE JIA

Respondent:

GABRIELEWOLLGRAMM-TAN

File Number:

SYG1954 of 2010

Judgment of:

Lloyd-Jones FM

Hearing date:

19 October 2010

Delivered at:

Sydney

Delivered on:

1 February 2011

REPRESENTATION

Advocate for the Applicant:

Mr I Mitchell

Solicitors for the Applicant:

Websters Solicitors

Advocate for the Respondent:

Ms A Lam

Solicitors for the Respondent:

Margaret Tan & Associates

ORDERS

The Creditor’s Petition, filed on 7 September 2010, is dismissed.
A copy of this order to be provided to the Official Receiver in Sydney within 2 days.
The Applicant creditor to pay the Respondent debtor’s costs as agreed or taxed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG1954 of 2010

YE JIA

Applicant

And

GABRIELE WOLLGRAMM-TAN

Respondent

REASONS FOR JUDGMENT

The proceedings

By an Amended Notice Stating Grounds of Opposition to the Creditor’s Petition filed on 8 October 2010, the Respondent debtor Gabriele Wollgram-Tan claims that she does not owe the Applicant creditor, Ye Jia, the amount of $23,689.84 awarded against her in proceedings number 10153 of 2009 in the Local Court, Downing Centre Sydney. Ms Wollgram-Tan states the following.
a)The Applicant has never paid the bank guarantee which is the basis of the judgment debt in 2009 as alleged.
b)The Applicant cannot provide evidence of the discharge of the bank guarantee by National Australia Bank (“NAB”). The Applicant is relying solely on a credit entry and a bank statement of Port Homemakers Pty Ltd, dated 9 September 2008.
c)There is a claim by the NAB in the Supreme Court in relation to the alleged debt of $46,723.00 against the Respondent and the Applicant jointly. The debt amount referred to above which was claimed by the Applicant is half the amount of $46,723.00 claimed by the NAB.
d)The Respondent is one of the defendants in proceedings number 00119013 of 2010 in the Supreme Court.
e)The application to set aside the judgment entered on 2 December 2009 in the Local Court was refused on the basis that the Respondent could cross claim against the Applicant in the Supreme Court.
Ms Wollgramm-Tan states that the Applicant relies on a judgment debt based on an alleged indemnity from her. The indemnity was between the Applicant and Ms Wollgramm-Tan to the NAB. Ms Wollgramm-Tan claims she has never provided any…

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 Jia v Wollgramm-Tan

Details

AGLC: Jia v Wollgramm-Tan [2011] FMCA 38
Case: [2011] FMCA 38
Decision Date: 1 February 2011

CaseChat Overview and Summary

The case of Jia v Wollgramm-Tan involved a creditor petitioning for the bankruptcy of the debtor. The petitioner, Jia, sought to have the respondent, Wollgramm-Tan, declared bankrupt. The matter was heard in the Federal Circuit Court of Australia. The dispute centred on whether Wollgramm-Tan was indeed unable to pay his debts as they fell due, a critical condition for a bankruptcy order.

The legal issues before the court included whether the petitioner had established the necessary grounds for a creditor’s petition, specifically focusing on the respondent's capacity to pay debts. The court had to assess the evidence provided by both parties and determine if the respondent's financial situation met the statutory criteria for bankruptcy. Another key issue was whether the petitioner had acted in accordance with the provisions of the Bankruptcy Act 1966.

In delivering the decision, the court examined the evidence and found that the petitioner had not satisfied the requirements to establish the respondent's inability to pay debts. The court held that the petitioner had not provided sufficient evidence to support the claim that the respondent was unable to pay his debts as they fell due. Consequently, the court dismissed the creditor’s petition. The court also noted that the petitioner was to pay the respondent's costs as agreed or taxed.

Orders

Orders of the court

The Creditor’s Petition, filed on 7 September 2010, is dismissed.

A copy of this order to be provided to the Official Receiver in Sydney within 2 days.

The Applicant creditor to pay the Respondent debtor’s costs as agreed or taxed.

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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