Kerr v American Express Australia Limited - [2010] FCA 146

FEDERAL COURT OF AUSTRALIA
Kerr v American Express Australia Limited [2010] FCA 146

Citation: Kerr v American Express Australia Limited [2010] FCA 146

Appeal from: American Express Australia Limited v Kerr (No. 2)
[2008] FMCA 1569

Parties: JOYE MAREE KERR v AMERICAN EXPRESS AUSTRALIA LIMITED

File number: NSD 1912 of 2008

Judge: REEVES J

Date of judgment: 8 February 2010

Legislation: Bankruptcy Act 1966 (Cth), s 73

Date of hearing: 8 February 2010

Place: Brisbane

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 9

Solicitor for the Appellant: The applicant appeared in person, assisted by Mr ID Kerr

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

NSD 1912 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
JOYE MAREE KERR
Applicant

AND:
AMERICAN EXPRESS AUSTRALIA LIMITED
Respondent

JUDGE:

REEVES J

DATE OF ORDER:

8 FEBRUARY 2010

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The appellant’s notice of motion filed on 1 February 2010 be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

NSD 1912 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
JOYE MAREE KERR
Applicant

AND:
AMERICAN EXPRESS AUSTRALIA LIMITED
Respondent

JUDGE:

REEVES J

DATE:

8 FEBRUARY 2010

PLACE:

BRISBANE

EX TEMPORE REASONS FOR JUDGMENT
(Corrected from transcript)

This is an appeal against a sequestration order made by a Sydney Federal Magistrate on 17 November 2008. The notice of appeal was filed on 9 December 2008. On 10 February 2009 a notice of motion was filed by the appellant seeking to have the matter transferred from the New South Wales Registry to the Queensland Registry of the Court. Emmett J ordered that the proceedings be transferred pursuant to that application on 6 March 2009. The matter was determined by the Chief Justice to be a matter suitable for hearing by a single judge and it was listed for hearing before me on 10 September 2009.
On 31 August 2009 Mr Kerr, appearing by leave for Ms Kerr, applied to have that hearing adjourned. The reasons given on that occasion were that Ms Kerr was not aware that the files in the New South Wales Registry had been transferred to the Queensland Registry. Therefore, they had not accessed those files until late August and needed more time to prepare for the appeal. It was also pointed out that since the other parties to the proceedings have not sought to appear, no prejudice would be suffered by them if the matter were to be adjourned. Accordingly, I adjourned the matter to 6 November 2009.
On 23 October 2009 the appellant filed a further notice of motion applying to adjourn that adjourned hearing. That matter was heard by Collier J in my absence. The reasons for the application on that occasion were that both Ms…

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 Kerr v American Express Australia Limited

Details

AGLC: Kerr v American Express Australia Limited [2010] FCA 146
Case: [2010] FCA 146
Decision Date

CaseChat Overview and Summary

In the case of Kerr v American Express Australia Limited, the appellant, Joye Maree Kerr, appealed against a sequestration order made by a Federal Magistrate in Sydney on 17 November 2008. The appeal was heard in the Federal Court of Australia, with Reeves J presiding. The core of the dispute involved the validity of the sequestration order issued by the Federal Magistrates Court, which Kerr sought to have set aside.

The primary legal issue before the court was whether the appeal against the sequestration order should be adjourned for a third time. Kerr argued that the appeal should be postponed due to a meeting of creditors scheduled to consider her offer of composition in satisfaction of her debts. Kerr contended that the outcome of this creditors' meeting would influence the orders she sought in the appeal. The court needed to determine whether this contention was valid and whether it justified another adjournment.

Reeves J dismissed the appeal against the sequestration order and refused the application for a third adjournment. The judge reasoned that the outcome of the creditors' meeting did not affect the validity of the sequestration order, as the order would either be set aside if improperly made or upheld if properly made. The court also noted the significant waste of judicial resources due to the previous adjournments and considered this in refusing the application for a further adjournment. The judge concluded that the meeting of creditors could not justify the additional delay, and the appeal would proceed as scheduled.

The court ordered that Kerr's notice of motion filed on 1 February 2010 be dismissed, effectively denying the request for a third adjournment and proceeding with the appeal hearing on 18 February 2010.

Orders