Lane Rowin Pty Ltd v Perovich - [2007] FMCA 1429

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LANE ROWIN PTY LTD v PEROVICH

[2007] FMCA 1429

BANKRUPTCY – Creditor’s petition – opposition on grounds respondent can pay debts – onus of proof.

BANKRUPTCY – Creditor’s petition – application for adjournment – whether likelihood of further evidence made out.

Bankruptcy Act 1966, s.52

Perovich v Lane Rowin Pty Ltd [2007] FMCA 940
Perovich v Neolido Holdings Pty Ltd [2007] FMCA 1105
Perovich v Traditional Values Management Ltd [2006] FMCA 1471
Perovich v Tesla Nominees Pty Ltd [2006] FMCA 1342
Johnson v Johnson (2000) 201 CLR 488
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Livesey v NSW Bar Association (1983) 151 CLR 288
Re JRL; ex parte CJL (1986) 161 CLR 342
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Sandell v Porter (1966) 115 CLR 666
International Alpaca Management Pty Ltd v Ensor (1999) FCA 72
Australian and New Zealand Banking Group Pty Ltd v Foyster [2000] FCA 400

Applicant:

LANE ROWIN PTY LTD

Respondent:

SILVANA PEROVICH

File number:

BRG 532 of 2007

Judgment of:

Wilson FM

Hearing date:

17 August 2007

Date of last submission:

17 August 2007

Delivered at:

Brisbane

Delivered on:

20 August 2007

REPRESENTATION

Counsel for the Applicant:

Mr M. Bland

Solicitors for the Applicant:

QBM Lawyers

Counsel for the Respondent:

Mr M. Martin

Solicitors for the Respondent:

Qld Law Group

ORDERS

The instanter application that I disqualify myself from hearing the application be refused.
The instanter application for an adjournment of the hearing be refused.
A Sequestration Order be made against the estate of SILVANA PEROVICH.
The Applicant Creditor’s costs (including reserved costs, if any) be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 532 of 2007

LANE ROWIN PTY LTD

Applicant

And

SILVANA PEROVICH

Respondent

REASONS FOR JUDGMENT

The applicant creditor seeks a sequestration order against the estate of the respondent debtor. By notice filed 14 August 2007 the respondent opposes the making of a sequestration order on the following grounds:
(1)The respondent is able to pay her debts within the meaning of s.52(2)(a) of the Bankruptcy Act 1966 (“the Act”)
(2)The court in the exercise of its discretion should not make a sequestration order against the respondent.
On the hearing of the application, Mr Martin of Counsel, who appeared on behalf of the respondent, accepted that the respondent’s opposition to the making of a sequestration order was confined to ground 1.
The respondent made two preliminary instanter applications. First, the respondent applied for an order that I disqualify myself from hearing the application. The basis for such application was that I had earlier dismissed an application by the respondent to set aside the bankruptcy notice (see Perovich v Lane Rowin Pty Ltd [2007] FMCA 940). That decision is the subject of an appeal, but there is no stay of the judgment in force. In reliance on that fact it was submitted…

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.

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Details

Case: [2007] FMCA 1429
Decision Date: 20 August 2007

CaseChat Overview and Summary

Lane Rowin Pty Ltd, a company, sought to recover a debt owed by Silvana Perovich, an individual. The matter was heard in the Federal Circuit Court of Australia, where the applicant sought a sequestration order against the debtor and an adjournment of the hearing. The court was required to determine whether the application for disqualification should be granted, whether the application for an adjournment should be approved, and whether a sequestration order should be issued against the debtor's estate. Additionally, the court had to decide on the taxation and payment of the applicant creditor's costs from the estate of the debtor.

The court dismissed the application for the judge to disqualify themselves from hearing the matter, finding no grounds for such a request. Regarding the application for an adjournment, the court refused the request, as it found that the applicant had not provided sufficient grounds to warrant a postponement of the hearing. Concerning the sequestration order, the court found that the applicant had satisfied the requirements of the Bankruptcy Act 1966, and granted the order against Silvana Perovich's estate. Finally, the court ordered that the applicant creditor's costs be taxed and paid from the debtor's estate in accordance with the relevant legislation.

The court's decision resulted in the refusal of both the application for disqualification and the application for an adjournment. A sequestration order was granted against Silvana Perovich's estate, and the applicant creditor's costs were to be taxed and paid from the debtor's estate. These outcomes followed the court's consideration of the relevant legal principles and the evidence presented in the case.

Orders

Orders of the court

The instanter application that I disqualify myself from hearing the application be refused.

The instanter application for an adjournment of the hearing be refused.

A Sequestration Order be made against the estate of SILVANA PEROVICH.

The Applicant Creditor’s costs (including reserved costs, if any) be taxed and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.

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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