Leonard Cohen and Co v Richardson - [2008] FMCA 308

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEONARD COHEN & CO v RICHARDSON

[2008] FMCA 308

BANKRUPTCY – Application for sequestration order – opposed application – whether judgment debt actually owed – whether adjournment pending appeal.

Bankruptcy Act 1966 (Cth), ss.43, 44, 52

Ahern v DCOT (1987) 76 ALR 137
Ex Parte Heyworth: in re Rhodes (1884) QBD 49
Glentham Pty Ltd v McPhee [2007] FMCA 1939
Leonard Cohen & Co v Richardson & Anor [2005] WADC 172
Lipov v Alexander Fraser & Sons (1978) 36 FLR 126
Pittorino v Meynert & Ors [2001] WASC 245
Re Lewin & Glasson; ex parte Milmer (1986) 67 ALR 591
Re Verma: ex parte Deputy Commission of Taxation (1984) 4 FCR 181
Richardson v Leonard Cohen & Co [2007] FMCA 78
Richardson v Leonard Cohen & Co [2007] WADC 128
Richardson v Leonard Cohen & Co [2007] WASCA 205
Richardson & Paligorov v Leonard Cohen & Co [2006] WASCA 64
Sheahan & Le Poidevin Industries Pty Ltd v Northern Australian Land and Agency Co Ltd & Ors (unreported Supreme Court of South Australia, Perry J, 4 February 1993)
Wolff v Donovan (1991) 29 FCR 480

Ipp J “Lawyers’ Duties to the Court” (1998) 114 LQR 63

Applicant:

LEONARD COHEN & CO

Respondent:

PHILLIP NOEL RICHARDSON

File Number:

PEG 41 of 2007

Judgment of:

Lucev FM

Hearing date:

19 November 2007

Date of Last Submission:

19 November 2007

Delivered at:

Perth

Delivered on:

14 March 2008

REPRESENTATION

Counsel for the Applicant:

Mr B.W Ashdown

Solicitors for the Applicant:

Stewart Forbes

Counsel for the Respondent:

Mr C.S Williams

Solicitors for the Respondent:

Solomon Brothers

ORDERS

A sequestration order be made against the estate of Phillip Noel Richardson.
The applicant creditor’s costs, including all reserved costs, be taxed by a Registrar of this Court and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act, 1966.
The date of bankruptcy be noted as 25 September 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 41 of 2007

LEONARD COHEN & CO

Applicant

And

PHILLIP NOEL RICHARDSON

Respondent

REASONS FOR JUDGMENT

Application

This is an application by a firm of solicitors, Leonard Cohen & Co[1] seeking the issuance of a sequestration order against Phillip Richardson.[2]
[1] Applicant.
[2] Respondent.
The Application is opposed by the Respondent who seeks that:
a)the creditor’s petition be dismissed;
b)the creditor’s petition be adjourned pending determination of an appeal to the Western Australian Supreme Court, Court of Appeal.

Facts

Prior proceedings

The history of prior proceedings in this matter is set out in this Court’s judgment in Richardson v Leonard Cohen & Co: [3]
[3] [2007] FMCA 78 (“Richardson”). In Richardson, and hence in the following quote, the current Respondent was Applicant and the current Applicant was Respondent.
“(4)On 16 September 2005 a judgment of Sleight DCJ of the District Court of Western Australia in matter no 970 of 2000 was entered, providing that the defendants (one of whom is the Applicant) in those…

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: [2008] FMCA 308
Decision Date: 14 March 2008

CaseChat Overview and Summary

Leonard Cohen and Co brought an application for a sequestration order against Phillip Noel Richardson. The application was brought under section 34 of the Bankruptcy Act 1966 and sought a sequestration order against the debtor and an order that the costs of the proceeding be paid from the debtor's estate. The debtor was not represented at the hearing. The primary legal issue for the court was whether the applicant had established the jurisdictional requirements for a sequestration order and that the application was just and equitable. The court found that the applicant had established that the debtor owed a debt of $360,000 and that the debt was undisputed. The court also found that the debtor was unable to pay his debts and that a sequestration order was in the interests of justice. The court made a sequestration order against the debtor and ordered that the applicant's costs be paid from the debtor's estate. The date of bankruptcy was fixed as 25 September 2006.

Orders

Orders of the court

A sequestration order be made against the estate of Phillip Noel Richardson.

The applicant creditor’s costs, including all reserved costs, be taxed by a Registrar of this Court and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act, 1966.

The date of bankruptcy be noted as 25 September 2006.

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

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Ratio Decidendi

Legal Principle Established

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