Liprini v Liprini - [2010] FMCA 687

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIPRINI v LIPRINI

[2010] FMCA 687

BANKRUPTCY – Creditor’s remedies under Part IV – orders made in family provision proceedings against executor – effect of settlement at mediation – whether personal liability in debt imposed on executor – whether proceedings under Part IX required – validity of bankruptcy notice and petition – debtor’s allegations of fraud affecting consent orders – insufficient evidence to go behind Supreme Court judgments – discretionary considerations for making sequestration order – application to set aside bankruptcy notice dismissed – sequestration order made.

Bankruptcy Act 1966 (Cth), ss.40(1), 41(6A), 41(7), 43(1), 52(1), 52(2), 52(3), 244
Bankruptcy Regulations 1996 (Cth), r.16.01
Family Provision Act 1982 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), Pt 54

Adamopoulos & Anor v Olympic Airways SA & Anor (1990) 95 ALR 525
Austrust Trade & Anor v Estate of the Late Evan Schomburgk Herbert & Anor [1998] FCA 1621
Harvey v Phillips (1956) 95 CLR 235
Hubner v Australia & New Zealand Banking Group Ltd (1999) 88 FCR 445
Levy v Kum Chah (1936) 56 CLR 159
Liew v JNS Technologies (M) Sdn Bhd [1999] FCA 1428
Liprini v Kerem & Anor(No. 2) [2010] FMCA 244
Liprini v Liprini [2010] NSWCA 126
Macquarie Leasing v Dekkan [2009] FMCA 349
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306
Repatriation Commission v Nation (1995) 57 FCR 25
Rixon v Bryett [2001] FCA 433
Skalkos v Tzovaras Legal Pty Ltd [2008] FMCA 543
Totev v Sfar [2006] FCA 470, (2006) 230 ALR 23
Wolff v Donovan (1991) 29 FCR 480
Wren v Mahony (1972) 126 CLR 212

Applicant:

KEVIN LIPRINI

Respondent:

ALLEN STEPHEN LIPRINI

File Number:

SYG 2675 of 2009

SYG 66 of 2010

Judgment of:

Smith FM

Hearing date:

3 September 2010

Delivered at:

Sydney

Delivered on:

3 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr M Roset

Solicitors for the Applicant:

Redmond Hale Simpson

Counsel for the Respondent:

In Person

Solicitors for the supporting creditors, Fikri Kerem and Andrew Daniel:

Law Partners Solicitors and Barristers.

ORDERS (in matter SYG 2675 of 2009)

The application is dismissed.
The respondent’s costs, including all reserved costs, be taxed and paid from the estate in the bankruptcy of the applicant arising under the sequestration order made on 3 September 2010 in the priority fixed by s.109(1)(a) of the Bankruptcy Act 1966 (Cth).
The respondent must give a copy of this order to the Official Receiver in Sydney within 5 days.

ORDERS (in matter SYG 66 of 2010)

The applicant has leave to amend paragraph 4 of the petition so as to rely upon an act of bankruptcy occurring on 2 November 2009, being 21 days after 10 October 2009 and the date when the respondent admits service of the bankruptcy notice. Dispense with re-verification and service.
A sequestration order be made against the estate of Allan Stephen Liprini.
All proceedings under the sequestration order are stayed under s.52(3) of the Bankruptcy Act 1966 (Cth) for 21 days.
The…

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: [2010] FMCA 687
Decision Date: 3 September 2010

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Kevin Liprini applied to have a sequestration order made against his brother, Allan Stephen Liprini. The application was made on the basis of an act of bankruptcy occurring on 2 November 2009. Allan Liprini applied to set aside the bankruptcy notice on which the petition relied. The dispute arose from family provision proceedings in the Supreme Court of New South Wales, which resulted in consent orders being made on 6 December 2007, and subsequent orders made by Nicholas J on 10 July 2009. Allan Liprini claimed that he was not personally liable to pay his brother any money, and that the consent orders should not be enforced by the Bankruptcy Court. The court dismissed Allan Liprini's application to set aside the bankruptcy notice and made a sequestration order against him. The court found that there was insufficient evidence to go behind the Supreme Court judgments and that there were no discretionary reasons to decline to make a sequestration order.

Orders