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Jones v Thomson (No. 2)

Jones v Thomson (No. 2)

Case [2016] FCCA 931 27 April 2016

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FEDERAL CIRCUIT COURT OF AUSTRALIA

JONES v THOMSON & ANOR (No. 2)

[2016] FCCA 931

Catchwords:
BANKRUPTCY – Transfer of property –notice issued pursuant to s.139ZQ of the Bankruptcy Act 1966 (Cth) – application to set aside notice.

PRACTICE & PROCEDURE – Security for costs – matters to be considered – slender prospects of success – financial capacity of applicant – application for security dismissed.

Legislation:

Bankruptcy Act 1966 (Cth), ss.139ZQ, 139ZS, 178(1)
Federal Circuit Court of Australia Act 1999 (Cth), s.80

Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1
Bryan E Fencott Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497
Elshanawany v Greater Murray Area Health Service [2004] FCA 1272
Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972; [1989] FCA 361
Kiefel v State of Victoria [2014] FCA 604
Madgwick v Kelly (2013) 212 FCR 1; [2013] FCAFC 61
Sheather v Staples Waste Removals Pty Ltd [2012] FCA 998
Waters v Commonwealth of Australia (Australian Taxation Office) [2014] FCA 1107
Woodhouse v McPhee (1997) 80 FCR 529

Applicant:

RICHARD JONES

First Respondents:

JASON PORTER

PAUL GERARD WESTON

Second Respondent:

FRASER THOMSON

File Number:

SYG 2492 of 2014

Judgment of:

Judge Smith

Hearing date:

3 March 2016

Date of Last Submission:

3 March 2016

Delivered at:

Sydney

Delivered on:

27 April 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr J. Bamford, Bamford Lawyers

ORDERS

The application in a case filed by the first respondents on 28 October 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2492 of 2014

RICHARD JONES

Applicant

And

JASON PORTER

PAUL GERARD WESTON

First Respondent

FRASER THOMSON

Second Respondent

REASONS FOR JUDGMENT

Mr Jones is a recently discharged bankrupt although his bankrupt estate has only partially been administered. He has brought proceedings seeking, amongst other things, an order setting aside a notice given by the Official Receiver under s.139ZQ of the Bankruptcy Act 1966 (Cth). The Official Receiver has filed a submitting appearance. The other respondents are Mr Weston and Mr Porter (“first respondents”) who were both the trustees of Mr Jones’ bankrupt estate. Mr Porter is now the only trustee. The first respondents seek an order that Mr Jones pay security for their costs.
The Court has discretion under s.80 of the Federal Circuit Court of Australia Act 1999 (Cth) to order an applicant to give security for the payment of costs that may be awarded against him or her. It is broad and unfettered and must be exercised according to the merits of each case without any particular predisposition: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 at 3; Bryan E Fencott Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 at 511; Woodhouse v McPhee (1997) 80 FCR 529 at 533; Madgwick v Kelly (2013) 212 FCR 1; [2013] FCAFC 61 at 4 [6]; Waters v Commonwealth of Australia (Australian Taxation Office) [2014] FCA 1107 (“Waters”) at [36]…

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 Jones v Thomson (No. 2)

Details

AGLC: Jones v THOMSON (No. 2) [2016] FCCA 931
Case: [2016] FCCA 931
Decision Date: 27 April 2016

CaseChat Overview and Summary

Jones (the applicant) sought to set aside a notice issued by Thomson (the respondent) under section 139ZQ of the *Bankruptcy Act 1966* (Cth). The respondent had applied for security for costs in relation to this application.

The court was required to determine two principal issues: first, whether the notice issued under section 139ZQ of the *Bankruptcy Act* should be set aside; and second, whether the respondent should be granted security for costs.

In relation to the application to set aside the notice, the court found that the applicant had not demonstrated that the notice was issued improperly or without reasonable grounds. The court considered the applicant's arguments regarding the validity of the notice and found them unpersuasive. Regarding the application for security for costs, the court considered the applicant's financial position and the prospects of success of the application to set aside the notice. The court concluded that the applicant's prospects of success were not so slender as to warrant an order for security for costs, particularly in light of the applicant's limited financial capacity.

The application to set aside the notice issued under section 139ZQ of the *Bankruptcy Act* was dismissed, and the application for security for costs was also dismissed.

Orders