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La Roche v Cormack

La Roche v Cormack

Case [1991] FCA 760 21 November 1991

Civil Litigation & Procedure

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JUDGMENT No. . ....... / .......,...... ? b C

IN THE FEDERAL COURT OF AUSTRALIA )
1

NEW SOUTH WALES DISTRICT REGISTRY j NO. NP 2765 of 1991

1 NP 2766 of 1991

GENERAL DIVISION

BETWEEN: ROSEMARY CLARICE ROCHE
Debtor

ESANDA FINANCE CORPORATION

LIMITED

Creditor

0 4 DEC 1991 BETWEEN : ROBERT ROCHE
FEDERAL COURT OF

AUSTRALIA Debtor

PRINCIPAL REGISTRY

AND : ESANDA FINANCE CORPORATION
LIMITED
Creditor

JUDGE MAKING ORDER: LOCKHART J.
WHERE ORDER MADE: SYDNEY
DATE ORDER MADE: 21 NOVEMBER 1991

MINUTE OF ORDER

THE COURT ORDERS THAT:

1. With respect to debtors' petitions 4395 and 4396 of 1991, the Court directs the Registrar to accept those petitions.
2. With respect to creditors' petitions 2765 and 2766 of 1991 the Court orders that they be adjourned to 3 December 1991 at 10 a.m.

NOTE: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

3. The Court directs Esanda Finance Corporation Limited to send by elther facsimile transmission or ordinary prepaid post a notlce informing the recipient of the adjourned date of the creditors' petitions; the said notice to be sent to the persons described as creditors in the statement of affairs of the debtors by 4 pm, 22 November 1991.

Costs reserved.

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY

j NO. NP 2765 of 1991

) NP 2766 of 1991
GENERAL DIVISION

BETWEEN: ROSEMARY CLARICE ROCHE
Debtor

AND : ESANDA FINANCE CORPORATION
LIMITED
Creditor

BETWEEN : ROBERT ROCHE
Debtor

AND: ESANDA FINANCE CORPORATION
LIMITED
Creditor

21 NOVEMBER 1991

REASONS FOR JUDGMENT

LOCKHART J.

Before the Court thls mornlng are two creditors' petitions,
the creditor being Esanda Finance Corporation Ljmited ( "Esanda")

and the debtors being husband and wife, Rosemary Clarice Roche

and Robert Roche. There are also before the Court pursuant to section 55(3A) of the Bankruptcy Act 1966 ("the Act") references

from the Registrar to the Court for a direction to accept or reject two debtors' petitions which were presented by each of the debtors yesterday, 20 November 1991.

The act of bankruptcy upon whlch the creditors' petitions are founded is that the debtor in each case transfered an interest in property which would be void as against the trustee ~n bankruptcy pursuant to section 40(l)(b) of the Act. The resolution of that question is intimately bound up with substantially the same question which arises in proceedings presently before the Supreme Court of New South Wales in its Commercial Division where, amongst other things, Esanda attacks the transfers of property to whlch I have referred and seeks to have them declared void pursuant to section 37A of the Conveyancing Act 19 19 (New South Wales) .

On 8 November last Mr Justice Rogers of the Supreme Court, in dealing with matters that came before him pursuant to those Supreme Court proceedings and being Informed of the pendency of the creditors petitions i.n bankruptcy which are presently before this Court, said that, in h ~ s view,…

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 La Roche v Cormack

Details

AGLC: La Roche v Cormack [1991] FCA 760
Case: [1991] FCA 760
Decision Date: 21 Nov 1991

CaseChat Overview and Summary

In the Federal Court of Australia, before Lockhart J, two cases were heard involving the Roches, Rosemary Clarice and Robert, as debtors, and Esanda Finance Corporation Limited as creditor. The court considered two creditors' petitions presented by Esanda against the Roches, based on the act of bankruptcy involving the transfer of property. Additionally, the court had to determine whether to accept two debtors' petitions submitted by the Roches. Lockhart J deliberated on the desirability of consolidating the proceedings in one court to avoid the chaos of parallel proceedings in the Federal Court and the Supreme Court of New South Wales.

The legal issues at hand were whether to accept the debtors' petitions, the implications of the differing periods of relation back, and the appropriate court to handle the proceedings. Lockhart J concluded that it was undesirable to have two sets of proceedings involving the same facts in different courts and that the relevant matters could be transferred from one court to the other. The judge proposed directing the Registrar to accept the debtors' petitions and leaving the creditors' petitions on foot temporarily. Lockhart J also expressed that the decision on transferring the proceedings should depend on the ultimate fate of the creditors' petitions and the actions of the trustee in bankruptcy.

Lockhart J ordered the Registrar to accept the debtors' petitions 4395 and 4396 of 1991, and adjourned the creditors' petitions 2765 and 2766 of 1991 to 3 December 1991 at 10 am. Esanda Finance Corporation Limited was directed to send a notice of the adjourned date to the creditors mentioned in the debtors' statements of affairs by 4 pm on 22 November 1991. Questions of costs were reserved.

Orders