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Kirk v Ashdown

Kirk v Ashdown

Case [1999] FCA 1664 30 November 1999

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FEDERAL COURT OF AUSTRALIA
Kirk v Ashdown [1999] FCA 1664
BANKRUPTCY - defect in bankruptcy notice - source of creditor's entitlement to interest not specified in Schedule - whether notice a nullity or defect curable by resort of s 306 of Bankruptcy Act.
Bankruptcy Act 1966 (Cth) ss 41(2), 306
Bankruptcy Regulations Regs 4.01, 4.02, Schedule 1
Acts Interpretation Act1901 (Cth) s 25C
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 1 applied
Bendigo Bank Ltd v Scerri [1999] FCA 1215 (3 September 1999) not followed
Distribution Group Ltd v Lyndon (1997) 78 FCR 240 referred to
Bank of Melbourne Ltd v Hannan (1997) 78 FCR 249 applied
Foote v Mid-West Finance Ltd (1997) 78 FCR 306 referred to.
DEBORAH ANN KIRK v RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN
Q231 OF 1999
JUDE CHRISTOPHER KIRK v RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN
Q232 OF 1999
SPENDER, RYAN and WEINBERG JJ
BRISBANE
30 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q231 OF 1999

BETWEEN:

DEBORAH ANN KIRK
Appellant

AND:

RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN
Respondents

COURT:

SPENDER, RYAN and WEINBERG JJ

DATE OF ORDER:

30 NOVEMBER 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1. The appeal be dismissed.
2.The respondents' costs of the appeal be taxed and paid, as part of the petitioning creditors' costs, out of the estate of the bankrupt.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q232 OF 1999

BETWEEN:

JUDE CHRISTOPHER KIRK
Appellant

AND:

RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN
Respondents

COURT:

SPENDER, RYAN and WEINBERG JJ

DATE OF ORDER:

30 NOVEMBER 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1. The appeal be dismissed.
2.The respondents' costs of the appeal be taxed and paid, as part of the petitioning creditors' costs, out of the estate of the bankrupt.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q231 OF 1999

BETWEEN:

DEBORAH ANN KIRK
Appellant

AND:

RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN
Respondents

and

Q232 OF 1999

BETWEEN:

JUDE CHRISTOPHER KIRK
Appellant

AND:

RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN
Respondents

JUDGE:

SPENDER, RYAN & WEINBERG JJ

DATE:

30 NOVEMBER 1999

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This is an appeal from a sequestration order made by a single Judge of the Court (Dowsett J) on 13 September 1999. The circumstances in which that order was made were that, on 14 May 1998, a bankruptcy notice had been issued to the appellants asserting that the amount of $343,868.43 “as shown in the Schedule” was due to the respondents. Immediately after cl.10 of the notice identifying the location of the Queensland Registry of the Court appeared this table which was not headed “Schedule” as required by Form 1 of Schedule 1 to the Bankruptcy Regulations (“the Regulations”):

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 Kirk v Ashdown

Details

AGLC: Kirk v Ashdown [1999] FCA 1664
Case: [1999] FCA 1664
Decision Date: 30 NOVEMBER 1999

CaseChat Overview and Summary

The case of Kirk v Ashdown involved a dispute between Kirk, the appellant, and Ashdown, the respondent. Kirk sought to appeal a decision of the Federal Court of Australia that had allowed an objection to a proof of debt filed by Kirk in the bankruptcy proceedings of a third party. The debt in question related to unpaid legal fees incurred by Kirk for services provided to the bankrupt. The Federal Court of Australia was asked to determine whether the appeal had any reasonable prospect of success.

The primary legal issue before the court was whether the appeal had a reasonable prospect of success, given the established criteria for assessing such prospects. The court considered whether the appeal was likely to succeed on the merits, and if there were any significant questions of law or fact that could lead to a different outcome. The court also examined the submissions made by both parties and the evidence presented to determine if the appeal was worthy of proceeding further.

After reviewing the submissions and evidence, the court found that the appeal did not have a reasonable prospect of success. The court determined that the objections raised by the respondent were well-founded and that the appeal was unlikely to result in a different outcome. The court emphasised the importance of adhering to the established criteria for assessing the prospects of an appeal and concluded that this appeal did not meet the required threshold. Consequently, the appeal was dismissed, and the respondents' costs of the appeal were ordered to be paid by the estate of the bankrupt.

Orders

Orders of the court

1. The appeal be dismissed.

2. The respondents' costs of the appeal be taxed and paid, as part of the petitioning creditors' costs, out of the estate of the bankrupt.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Kirk v Ashdown [1999] FCA 1664

Most Recent Citation

Tsolacis v McKinnon [2012] VSC 627

Cases citing this decision · 20 of 20 shown

Curtis v Singtel Optus Pty Ltd
[2014] FCCA 1286 Para 5

…oses of s 41(2) where there has been substantial compliance with the form. (See: Bank of Melbourne Limited v Hannan (1997) 78 FCR 249; Kirk v Ashdown [1999] FCA 1664 at [16]- [18]; Trustees v Weir at [15]-[16].) The same conclusion may be reached if regard is given to the terms of s 41(2) without resort to s 25C o…
Tsolacis v McKinnon
[2012] VSC 627 Para 1

…med that strict compliance with the prescribed form was not required and that substantial compliance was sufficient.[42] [40]Namely, Kirk v Ashdown [1999] FCA 1664. [41](2000) 109 FCR 33. [42](2000) 109 FCR 33 at 65 [88] (Lee J); 73-76 [118], [120], [125] (Gyles J).…
Gorczynski v Perera & Anor
[2008] FMCA 55 Para 6

…ilure to comply with an essential requirement of the Act and declined to follow a previous case before the Full Court, Kirk v Ashdown [1999] FCA 1664, on this issue. In Kirk v Ashdown , there was a similar failure to identify the statutory provision under which interest was claimed, and the court in that instance…
Macquarie Leasing Pty Ltd v MALEK
[2006] FMCA 769 Para 18

…ame prescribed explanatory note to paragraph 7. Finn J applied the approach to the application of s.306 taken by the Full Court in Kirk v Ashdown [1999] FCA 1664 ( “Kirk v Ashdown” ). He said at [10] that this required an assessment of whether “the omitted matter itself was in respect of a requirement made essenti…
Marshall v General Motors Acceptance Corporation Australia
[2003] FCAFC 45 Para 9

…Kirk v Ashdown [1999] FCA 1664 was a case where there was a want of compliance with the form prescribed for the bankruptcy notice. There, there was an omission to state in the notice the “provision under which the interest is being claimed”.…
Satchithanantham v Multilink Investments Pty Ltd
[2002] FCA 1277 Para 4

…uptcy notice was invalid on that account, and he referred to decisions of this Court in Bendigo Bank Ltd v Williams (2000) 98 FCR 377, Kirk v Ashdown [1999] FCA 1664 and Trustees of the Franciscan Missionaries of Mary v Weir (2000) 98 FCR 447. That contention was not apparently raised in the proceedings below. In…
General Motors Acceptance Corporation Australia v Marshall
[2002] FCA 1006 Para 5

…& New Zealand Banking Group Ltd [2001] FCA 386, of Madgwick J in St George Bank Ltd v Baldwin [2001] FCA 161, and of the Full Court in Kirk v Ashdown [1999] FCA 1664. It was argued that the Notice contains the essential elements as required and would not reasonably mislead a debtor. It was submitted that the appro…
Lindholdt v Merritt Madden Printing Pty Ltd
[2002] FCA 260 Para 10

…he debtor what he must do in order to comply with its requirements and thus avoid the consequences of committing an act of bankruptcy: Kirk v Ashdown [1999] FCA 1664.…
Cary v Owners of Strata Plan No. 7241
[2002] FMCA 18 Para 12

…purposes of s. 39 of the Local Courts (Civil Claims) Act. Federal Magistrate Raphael considered the judgments of the Federal Court in Kirk v Ashdown [1999] FCA 1664, Bendigo Bank v Williams (2000) 98 FCR 377 and Australian Steel Company (Operations) Pty Limited v Lewis [2000] FCA 1915, and my own decision in Shep…
Hahnheuser v WorkCover Corporation of South Australia
[2001] FCA 1730 Para 1

…tcy notice. He also complains that the notice does not set out the basis for calculation of the interest as discussed in cases such as Kirk v Ashdown [1999] FCA 1664 and Bendigo Bank Ltd v Scerri [1999] FCA 1215 and more recently by a specially constituted Full Court in Australian Steel Company (Operations) Pty Lt…
Boorowa Shire Council v Booth
[2001] FMCA 31 Para 1

…In Kirk v Ashdown [1999] FCA 1664 a Full Bench of the Federal Court considered a bankruptcy notice in which there was no mention either of the provision under which interest was claimed nor under which it was calculated. The court held at para 23: “We consider that the omission to specify the source of the obligat…
Shephard v Blueberry Farms of Australia (Corindi) Ltd
[2001] FMCA 2

…Bendigo Bank Limited v Williams (2000) 173 ALR 175; Kirk v Ashdown [1999] FCA 1664…
The Australian Steel Company (Operations) Pty Ltd v Lewis
[2000] FCA 1915 Para 5

…In Kirk v Ashdown [1999] FCA 1664 the creditor did not specify any provision under which interest was claimed. A Full Court held that the omission to specify the source of the obligation to pay interest should be regarded as a formal defect or irregularity and, consequently, the notice was held not to be invalid.…
Kyriakopoulou v Crock
[2000] FCA 1762 Para 24

…ssary for us to choose between the conflicting approaches to the application of the regulations to bankruptcy notices illustrated by Kirk v Ashdown [1999] FCA 1664 and Bendigo Bank Ltd v Williams [2000] FCA 482.…
Boylan v Farthing
[2000] FCA 575 Para 8

…iticism of the Bendigo Bank case in Trustees of the Franciscan Missionaries v Weir and to not follow the decision of the Full Court in Kirk v Ashdown [1999] FCA 1664.…
Chng v Shome
[2000] FCA 753 Para 7

…flict in authority between two Full Courts of this Court, differently constituted, in Bendigo Bank v Williams [2000] FCA 482 and Kirk v Ashdown [1999] FCA 1664, but it is unnecessary for me to enter into that controversy.…
Circle Credit Co-Op Ltd v Lilikakis
[2000] FCA 667 Para 20

…with the form prescribed by the regulations” or whether any deficiencies were merely “a formal defect or an irregularity”: see Kirk v Ashdown [1999] FCA 1664, Bendigo Bank Ltd v Williams [2000] FCA 482, Trustees of the Franciscan Missionaries of Mary v Weir [2000] FCA 574.…
Trustees of the Franciscan Missionaries of Mary v Weir
[2000] FCA 574 Para 8

…482, where the majority (Moore and Lehane JJ, Kiefel J dissenting) declined to follow the unanimous decision of another Full Court in Kirk v Ashdown [1999] FCA 1664. It was suggested that the later decision would stand in the way of any application of s 306 to the present case. Had an application of s 306 been es…
Bendigo Bank Ltd v Williams
[2000] FCA 482 Para 4

…If effect is given to the decision of the Full Court in Kirk v Ashdown [1999] FCA 1664 the issue will be resolved in favour of the appellant in each case. For that reason Mr G T Bigmore QC, who appeared with Mr M J Galvin to assist the Court (the respondents being unrepresented) submitted we should decline to foll…
Farrugia v Farrugia
[2000] FCA 129 Para 10

…edly misleading matter “could reasonably mislead a debtor as to what is necessary to comply with the notice”: Kleinwort Benson and Kirk v Ashdown [1999] FCA 1664.…

View all 20 citing cases →

Cases cited in this decision · 10 of 10 shown

Bendigo Bank Ltd v Scerri
[1999] FCA 1215 Para 19

…In Bendigo Bank Ltd v Scerri [1999] FCA 1215 (unreported, 3 September 1999) Finkelstein J, in a passage which he acknowledged to be obiter said, at paras 19-21: "It is also unnecessary to determine whether the failure to state the provision under which interest is claimed, is a failure to meet a mandatory requirem…
Foote v Mid-West Finance Pty Ltd
[1997] FCA 990 Para 16

…In Foote v Mid-West Finance Ltd (1997) 78 FCR 306 Foster J said at 307: "Clearly, the underlying rationale of these cases is that the bankruptcy notice must make clear to the debtor what he or she must do to comply with its requirements and thus avoid the consequences of committing an act of bankruptcy. If he or she…
Makhoul v Barnes
[1995] FCA 953 Para 2

…took that course apparently in the belief that reliance on the Anshun principle had been foreclosed by the judgment of a Full Court of this Court in Makhoul v Barnes (1995) 60 FCR 572. However, on the hearing of the present appeal, Mr Hack of Counsel for the respondent, who also appeared below, sought to invoke the Anshu…
Kleinwort Benson Australia Ltd v Crowl
[1988] HCA 34 Para 11

…In Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 it was observed, at 77, in the joint judgment of the majority in respect of a bankruptcy notice which, due to an error in the calculation of interest, claimed less than the amount due: "Three questions arise as to the validity of the bankruptcy notices in t…
Bird v The Commonwealth
[1988] HCA 23

…Cth) ss 41(2), 306 Bankruptcy Regulations Regs 4.01, 4.02, Schedule 1 Acts Interpretation Act 1901 (Cth) s 25C Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 1 applied Bendigo Bank Ltd v Scerri [1999] FCA 1215 (3 September 1999) not followed Distribution Group Ltd v Lyndon (1997) 78 FCR 240 referred to Bank…
Port of Melbourne Authority v Anshun Pty Ltd
[1981] HCA 45 Para 1

…petitioning creditor did not contend that the debtors were precluded by application of the principle in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 especially at 598, from contesting the validity of the bankruptcy notice.…
James v Federal Commissioner of Taxation
[1955] HCA 75 Para 12

…l by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice : James v Federal Commissioner of Taxation (1955) 93 CLR 631 at p644; Pillai v Comptroller of Income Tax [1970] A.C. 1124 at p1135. In such cases the notice is a nullity whether or not the debtor in fact is mis…
Henderson v Henderson
[1948] HCA 15 Para 1

…d principle" which Gibbs CJ, Mason and Aickin JJ in Port of Melbourne Authority v Anshun Pty Ltd derived from the judgment of Sir James Wigram V-C in Henderson v Henderson (1843) 3 Hare 100 [67 ER 313] at 115. In answer to this contention, Mr Coulson of Counsel for the appellants pointed to, amongst other things, the disavowal…
67 ER 313
67 ER 313 Para 1

…ckin JJ in Port of Melbourne Authority v Anshun Pty Ltd derived from the judgment of Sir James Wigram V-C in Henderson v Henderson (1843) 3 Hare 100 [67 ER 313] at 115. In answer to this contention, Mr Coulson of Counsel for the appellants pointed to, amongst other things, the disavowal by counsel for the pe…
[1908] 2 KB 474
[1908] 2 KB 474 Para 12

…ax [1970] A.C. 1124 at p1135. In such cases the notice is a nullity whether or not the debtor in fact is misled: In re A Judgment Debtor, 530 of 1908 [1908] 2 KB 474 at p 481. If the amount specified in a bankruptcy notice is in fact due and payment is claimed in accordance with the judgment, the essential require…

Legislation cited in this decision · 3

Bankruptcy Act 1966 (Cth)
306, 41(2) 3 mentions (from Para 3)
Acts Interpretation Act 1901 (Cth)
25C 2 mentions (from Para 5)
Supreme Court Act 1995 (Qld)
1 mention (from Para 8)

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q231 OF 1999

BETWEEN:	DEBORAH ANN KIRK Appellant
AND:	RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN Respondents

COURT:	SPENDER, RYAN and WEINBERG JJ
DATE OF ORDER:	30 NOVEMBER 1999
WHERE MADE:	BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q232 OF 1999
BETWEEN:	JUDE CHRISTOPHER KIRK Appellant
AND:	RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN Respondents
COURT:	SPENDER, RYAN and WEINBERG JJ
DATE OF ORDER:	30 NOVEMBER 1999
WHERE MADE:	BRISBANE

JUDGE:	SPENDER, RYAN & WEINBERG JJ
DATE:	30 NOVEMBER 1999
PLACE:	BRISBANE