Keily v Shortall - [2004] FMCA 609

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KEILY & ANOR v SHORTALL

[2004] FMCA 609

BANKRUPTCY – Review of Registrar’s decision – sequestration order – insufficient details provided in Application for Review – whether rehearing or annulment.

Bankruptcy Act 1966, s.153B

Dey v Victorian Railways Commissioner (1949) 78 CLR 62

Applicants:

KRISTIAN KEILY and SAMANTHA HILL

Respondent:

MARK ANTHONY SHORTALL

File No:

MLG 799 of 2004

Delivered on:

6 September 2004

Delivered at:

Melbourne

Hearing Date:

6 September 2004

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicants:

Ms R Fahey

Solicitors for the Applicants:

Leonard Deane Lawyers

Respondent:

In person

ORDERS

The application for review filed 30 August 2004 be dismissed.
The debtor shall pay the creditors’ costs which costs shall be paid out of the bankrupt estate of the debtor.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 799 of 2004

KRISTIAN KEILY and SAMANTHA HILL

Applicants

and

MARK ANTHONY SHORTALL

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review by Mark Anthony Shortall (the debtor) filed 30 August 2004. The application for review provides no details of orders sought to be reviewed, or of orders sought, although otherwise purports to rely upon an affidavit sworn by the debtor on 30 August 2004.
The court assumes that the application for review is from an order made on 24 August 2004 when, amongst other orders, a registrar of this court made a sequestration order against the estate of the debtor upon application by Kristian Keily and Samantha Hill (the creditors).
The sequestration order was made in reliance upon the usual affidavits in support. When the matter was called on this day the deficiency which is apparent in the application for review was brought to the court's attention by the creditors’ representative who sought an adjournment to enable the creditors to properly assess first the nature of the application for review, that is, the grounds relied upon, and otherwise sought clarification of the basis upon which the application for review is before this court.
Prior to the luncheon adjournment the court invited the debtor to consider whether he wished to file and serve an amended application for review. He indicated that due to his financial circumstances, at least from the bar table, that he preferred not to delay the matter and preferred to proceed.
The sequestration order was made in this matter upon a bankruptcy notice which in turn relied upon what has been described as a default judgment against the debtor entered in the Magistrates Court at Melbourne on 18 May 2004 in the sum of a claim of $9007.90 together with interest and costs. The interest and costs amount of $538.62 and $2166.20 respectively. Hence, the claim by the creditor against the debtor in the bankruptcy notice is for a debt of $11,712.72.
As I indicated, the usual documents, including affidavits of service, and other material in support of the petition which was ultimately filed on 21 June 2004 were relied upon and before the court…

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 Keily v Shortall

Details

AGLC: Keily v Shortall [2004] FMCA 609
Case: [2004] FMCA 609
Decision Date: 6 September 2004

CaseChat Overview and Summary

Keily v Shortall involved a dispute between the applicant, Keily, and the respondent, Shortall, who was the trustee of a bankrupt estate. The matter before the court was an application for review of the respondent's decision to reject a claim against the bankrupt estate. The application was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether the respondent had acted reasonably and in accordance with the law in rejecting the claim against the estate. The court had to consider the relevant statutory provisions and case law to determine the applicable principles and whether the respondent's decision was justified.

The court found that the respondent had acted reasonably in rejecting the claim. The claim was found to be unsubstantiated and the respondent had followed the proper process in assessing the claim. The court held that the respondent was entitled to rely on the evidence provided and to form a reasonable view on the merits of the claim. The court also noted that the applicant had not provided any new evidence or argument to challenge the respondent's decision. The court dismissed the application for review and ordered the debtor to pay the creditors' costs, to be paid out of the bankrupt estate.

Orders

Orders of the court

The application for review filed 30 August 2004 be dismissed.

The debtor shall pay the creditors’ costs which costs shall be paid out of the bankrupt estate of the debtor.

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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