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Kirk v Ashdown

Kirk v Ashdown

Case [1999] FCA 522 29 April 1999

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FEDERAL COURT OF AUSTRALIA
Kirk v Ashdown [1999] FCA 522
BANKRUPTCY - grounds for challenging validity of bankruptcy notice founded on a judgment debt - whether judgment predicated on perjured evidence - requisite nexus between fraud and order made - whether witness credibility a collateral issue
Wren v Mahony (1972) 126 CLR 212 Cited
Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 Cited
Olivieri v Stafford (1989) 24 FCR 413 Cited
Wenkart v Abignano [1999] FCA 354, Full Court, unreported Cited
McDonald v McDonald (1965) 113 CLR 529 Cited
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234 Cited
Bourke v Beneficial Finance Corporation Ltd (1993) 47 FCR 264 Refd to
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 Refd to
Re Geard; Ex parte Reid, Sheppard J [1994] FCA 45 Refd to
DEBORAH ANN KIRK v RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN
QG 7430 of 1998
JUDE CHRISTOPHER KIRK v RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN
QG 7507 of 1998
KIEFEL J
BRISBANE
29 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 7430 OF 1998

BETWEEN:

DEBORAH ANN KIRK
Applicant

AND:

RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN
Respondents

JUDGE:

KIEFEL J

DATE OF ORDER:

29 APRIL 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The order made on 28 October 1998 extending time for compliance with the bankruptcy notice be vacated.

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

QG 7507 OF 1998

BETWEEN:

JUDE CHRISTOPHER KIRK
Applicant

AND:

RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN
Respondents

JUDGE:

KIEFEL J

DATE OF ORDER:

29 APRIL 1999

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application be dismissed.

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

QG 7430 OF 1998

BETWEEN:

DEBORAH ANN KIRK
Applicant

AND:

RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN
Respondents

AND

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 7507 OF 1998

BETWEEN:

JUDE CHRISTOPHER KIRK
Applicant

AND:

RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN
Respondents

JUDGE:

KIEFEL J

DATE:

29 APRIL 1999

PLACE:

BRISBANE

REASONS FOR JUDGMENT

Mr and Mrs Kirk each apply for orders with respect to bankruptcy notices served upon them following the conclusion of proceedings in the Supreme Court of Queensland, brought by Mr and Mrs Ashdown. A point initially raised, as to whether service had properly been effected upon Mrs Kirk, is no longer pursued.
On 27 October 1998, Mrs Kirk filed an application seeking an order that the time for compliance with the bankruptcy notice be extended and that it be set aside. A Deputy District Registrar made an order extending the time for compliance until further order. Mrs Kirk also seeks an account from Mr and Mrs Ashdown…

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 522
Case: [1999] FCA 522
Decision Date: 29 APRIL 1999

CaseChat Overview and Summary

The case of Kirk v Ashdown involved the applicant, Kirk, who sought to challenge the decision of Ashdown, the Official Trustee in Bankruptcy, to vacate an order that had extended the time for Kirk to comply with a bankruptcy notice. The dispute came before the Federal Circuit and Family Court of Australia.

The primary legal issue that the court had to address was whether Kirk's application was within the jurisdiction of the court, considering the provisions of the Bankruptcy Act 1966. Specifically, the court needed to determine whether Kirk's application was an appeal against an order made by the Official Trustee in Bankruptcy and whether the court had the authority to vacate such an order.

The court found that Kirk's application was effectively an appeal against the decision of the Official Trustee in Bankruptcy to vacate the extended time for compliance with the bankruptcy notice. The court held that it did not have the jurisdiction to entertain Kirk's application because it was not an appeal as defined by the Bankruptcy Act 1966. Consequently, the court dismissed the application and vacated the order that had extended the time for compliance with the bankruptcy notice.

Orders

Orders of the court

1. The application be dismissed.

2. The order made on 28 October 1998 extending time for compliance with the bankruptcy notice be vacated.

1. The application be dismissed.

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.

Actions

Citations

Kirk v Ashdown [1999] FCA 522

Most Recent Citation

Chancliff Holdings Pty Ltd v Bell [1999] FCA 1708

Cases Citing This Decision

JML Rose Pty Ltd v Jorgensen (No 2) [2025] FCA 282
Citation 1 (Para 24)

…ge of justice, but the debtor carries the onus of establishing that the fraud was “directly material to the judgment” (see Kirk v Ashdown [1999] FCA 522) and Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 ( Emerson ) at 588). There may be other substantial reasons for going behind a judgment debt, however, in the a…
Peek v Hennessy [2021] FCA 1187
Citation 2 (Para 20)

…ge of justice, but the debtor carries the onus of establishing that the fraud was “directly material to the judgment” (see Kirk v Ashdown [1999] FCA 522) and Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 ( Emerson ) at 588). There may be other substantial reasons for going behind a judgment debt, however, in the a…
Sayer-Jones v Juju Bean Investments Pty Ltd [2020] FCA 177
Citation 3 (Para 11)

…ge of justice, but the debtor carries the onus of establishing that the fraud was “directly material to the judgment” (see Kirk v Ashdown [1999] FCA 522) and Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 ( Emerson ) at 588). There may be other substantial reasons for going behind a judgment debt, however, in the a…
Dunkerley v Comcare [2019] FCA 1002
Citation 4 (Para 34)

…ge of justice, but the debtor carries the onus of establishing that the fraud was “directly material to the judgment” (see Kirk v Ashdown [1999] FCA 522) and Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 ( Emerson ) at 588). There may be other substantial reasons for going behind a judgment debt, however, in the a…
Clone Pty Ltd v Players Pty Ltd (In liquidation) (Receivers Appointed) [2016] SASCFC 134
Citation 5

…ey v Philips (1883) 10 QBD 465 ; Kennedy v Daly (1804) 1 Sch & Lefr 355; Kirk v Ashdown [1999] FCA 522; Loyd v Mansell (1722) 2 P Wms 73; Magarditch v Australia and New Zealand Banking Group Limited (1999) 30 ACSR 265; McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623; Michael v Fripp (1870) 18 WR 423; M…
Xu v Wan Ze Property Development (Aust) Pty Ltd (in liquidation) [2014] FCA 461
Citation 6 (Para 14)

…nce going to fraud, including by cross-examination, and without deciding whether or not that evidence was “fresh”, as to which see Kirk v Ashdown [1999] FCA 522 at [16] per Kiefel J, cited with approval in Biritz v National Australia Bank Ltd (2001) 115 FCR 117 at [20] per Kenny J, no such good reason was establi…
Woolley v Vok [2012] FMCA 228
Citation 7 (Para 17)

…roe Schneider Associates (Inc) and Another v No 1 Raberem Pty Ltd and Others (No 2) (1992) 37 FCR 234; (1992) 109 ALR 137 and also see Kirk v Ashdown [1999] FCA 522). Rather, Mr Vok seeks to reagitate the issue determined by the Local Court and addressed on appeal. I find the reasoning of Hall J persuasive in tha…
Gorczynski v Aitken and Ors (No.2) [2011] FMCA 86
Citation 8 (Para 32)

…ideration (see Wren v Mahony (1972) 126 CLR 212; [1972] HCA 5). Nor is there any suggestion of new evidence in the sense considered in Kirk v Ashdown [1999] FCA 522.…
Biritz v National Australia Bank Ltd [2001] FCA 1635
Citation 9 (Para 2)

…As Kiefel J observed in Kirk v Ashdown [1999] FCA 522 at [16]: In proceedings to set aside a judgment obtained by fraud, while it is unnecessary to show that the evidence relied on in that connexion would be admissible on the issues between the parties to the action leading to the judgment in question, it is neve…
Chancliff Holdings Pty Ltd v Bell [1999] FCA 1708
Citation 10 (Para 26)

…Associates v No.1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234, at 238-242; Bourke v Beneficial Finance Corporation Ltd (1993) 47 FCR 264; Kirk v Ashdown [1999] FCA 522). However, a court may always stay a judgment obtained by consent that is inconsistent with justice, as noted by Lord Hanworth M.R. in Mills Conduit…

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Cases Cited

Wenkart v Abignano [1999] FCA 354
Citation 1 (Para 15)

…t is clearly inappropriate: see Emerson v Wreckair Pty Ltd (1992) 33 FCR 581, 587-588; Olivieri v Stafford (1989) 24 FCR 413, 429; Wenkart v Abignano [1999] FCA 354, Full Court, unreported. It was submitted however that exceptional circumstances exist here because of the fraud which was perpetrated upon the Court…
Byron v Southern Star Group Pty Ltd [1997] HCATrans 193
Citation 2 (Para 18)

…een refused and there are no special circumstances to warrant an extension of time to comply with the notice (see Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264, 272; Re Geard; Ex parte Reid [1994] FCA 45). In Mrs Kirk’s case, an order had been made extending time for compliance “until further order”. I doubt…
Re Geard; Ex parte Reid [1994] FCA 45
Citation 3 (Para 18)

…es to warrant an extension of time to comply with the notice (see Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264, 272; Re Geard; Ex parte Reid [1994] FCA 45). In Mrs Kirk’s case, an order had been made extending time for compliance “until further order”. I doubt the appropriateness of such an order. It wa…
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) [1992] FCA 548
Citation 4 (Para 16)

…“directly material” to the judgment: McDonald v McDonald (1965) 113 CLR 529, 532; Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234, 242, such that if it had been received at trial, then in all probability, the judgment would have been reversed: Monroe Schneider 244. Evidence relating…
Emerson v Wreckair Pty Ltd [1992] FCA 16
Citation 5 (Para 15)

…that what is proposed is in truth a re-trial on the defence of consensual termination. That is clearly inappropriate: see Emerson v Wreckair Pty Ltd (1992) 33 FCR 581, 587-588; Olivieri v Stafford (1989) 24 FCR 413, 429; Wenkart v Abignano [1999] FCA 354, Full Court, unreported. It was submitted however that except…
Re Holden, C.P. v Ex parte Holden, M [1989] FCA 486
Citation 6 (Para 15)

…the defence of consensual termination. That is clearly inappropriate: see Emerson v Wreckair Pty Ltd (1992) 33 FCR 581, 587-588; Olivieri v Stafford (1989) 24 FCR 413, 429; Wenkart v Abignano [1999] FCA 354, Full Court, unreported. It was submitted however that exceptional circumstances exist here because of the fr…
Wren v Mahony [1972] HCA 5
Citation 7 (Para 13)

…irk submit that this Court ought not regard the judgment as conclusive of the question whether there is a debt and should go behind it: Wren v Mahony (1972) 126 CLR 212. It is submitted that they are able to show that the judgment was procured by fraud, by reason of the perjured evidence of Mr Ashdown and others in r…
McDonald v McDonald [1965] HCA 45
Citation 8 (Para 16)

…ding to the judgment in question, it is nevertheless necessary to establish the fraud as “directly material” to the judgment: McDonald v McDonald (1965) 113 CLR 529, 532; Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234, 242, such that if it had been received at trial, then in all pro…

Legislation Cited

No legislation cited in this judgment.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7430 OF 1998

BETWEEN:	DEBORAH ANN KIRK Applicant
AND:	RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN Respondents
JUDGE:	KIEFEL J
DATE OF ORDER:	29 APRIL 1999
WHERE MADE:	BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7507 OF 1998

BETWEEN:	JUDE CHRISTOPHER KIRK Applicant
AND:	RONALD CLIVE ASHDOWN and HELEN IVY ASHDOWN Respondents
JUDGE:	KIEFEL J
DATE OF ORDER:	29 APRIL 1999
WHERE MADE:	BRISBANE

JUDGE:	KIEFEL J
DATE:	29 APRIL 1999
PLACE:	BRISBANE