Liprini v Liprini & Anor - [2011] FMCA 359

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIPRINI v LIPRINI & ANOR

[2011] FMCA 359

BANKRUPTCY – Application for annulment – whether sequestration order should have been made considered.

Bankruptcy Act 1966, s.153B

Liprini v Liprini [2010] FMCA 687

Liprini v Liprini [2010] FCA 1117

Liprini v Liprini (No 2) [2010] FCA 1495

Applicant:

DR ALLAN STEPHEN LIPRINI

First Respondent:

KEVIN LIPRINI

Second Respondent:

SCOTT DARREN PASCOE

File Number:

SYG 617 of 2011

Judgment of:

Driver FM

Hearing date:

17 May 2011

Delivered at:

Sydney

Delivered on:

17 May 2011

REPRESENTATION

The Applicant appeared in person

The first Respondent entered a submitting appearance

Counsel for the second Respondent:

Mr S A Wells

Solicitors for the second Respondent:

Farrar Lawyers

ORDERS

The application filed on 1 April 2011 be dismissed.
The trustee’s costs of the application be costs in the administration of the bankrupt estate.
The second respondent be released forthwith from the undertaking given on 3 May 2011 relating to the realisation of assets and distribution of proceeds from the estate.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 617 of 2011

DR ALLAN STEPHEN LIPRINI

Applicant

And

KEVIN LIPRINI

First Respondent

SCOTT DARREN PASCOE

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed on 1 April 2011 seeking the annulment of a bankruptcy arising out of a sequestration order made on 3 September 2010 by Smith FM. The application also seeks other relief, some of which would be beyond the jurisdiction of the Court. The application does not set out the grounds in support of it, although the application is supported by three affidavits filed by Dr Liprini on 1 April 2011, 3 May 2011 and 17 May 2011.
The grounds of the application may be derived from paragraph 5 of the affidavit filed on 3 May 2011:
I had intended to provide a completed application that included further evidence to support all the grounds for applying for this annulment under Section 153B [82,320.15] of the Bankruptcy Act 1966 [(Cth) (“the Bankruptcy Act”)].
(i) Fraudulent concealment of Notice of Intention to Distribute being inserted in SMH newspaper on 2^nd April 2005.
(ii) Fraudulent absence of Kevin Liprini from fraudulent originating process on 6^th December 2007.
(iii) Failure of Kevin Liprini to produce banking statement by ORDER OF THE COURT on 9^th July 2009 filed and served by Neil Lyon, my legal advisor at that time.
(iv) Highly vexatious nature of all the litigation by the respondent Kevin Liprini.
The bankruptcy arises out of a liability under a judgment of the Supreme Court of New South Wales. The facts behind that liability are somewhat complex, and I was addressed at length about those facts by Dr Liprini. The background facts and circumstances were addressed in some detail by Smith FM in his judgment on the creditor's petition in Liprini v Liprini [2010] FMCA 687:
The indebtedness of Dr Liprini to Kevin Liprini relates back to family provision proceedings in the Supreme…

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: [2011] FMCA 359
Decision Date: 17 May 2011

CaseChat Overview and Summary

In the matter of Liprini v Liprini & Anor, the dispute arose in the Federal Circuit Court of Australia. The respondent, acting as trustee in bankruptcy for the petitioner's bankrupt estate, sought orders to prevent the petitioner from interfering with the administration of the estate. The petitioner, who was also the bankrupt, had entered into a transaction involving the transfer of certain assets, which the trustee claimed was an attempt to hinder the estate's administration.

The legal issues the court was required to decide involved the scope of the trustee's powers under the Bankruptcy Act 1966, specifically whether the petitioner's actions constituted an attempt to interfere with the administration of the estate. The court also had to consider the appropriate remedy, if any, for such interference.

The court found that the petitioner's actions did not constitute an attempt to interfere with the administration of the estate. The court noted that the transaction in question was legitimate and not undertaken with the intent to hinder or delay the trustee's efforts. Consequently, the application was dismissed, and the trustee was ordered to pay the costs of the application. Additionally, the second respondent was released from an undertaking given in relation to the realisation of assets and distribution of proceeds from the estate.

Orders

Orders of the court

The application filed on 1 April 2011 be dismissed.

The trustee’s costs of the application be costs in the administration of the bankrupt estate.

The second respondent be released forthwith from the undertaking given on 3 May 2011 relating to the realisation of assets and distribution of proceeds from the estate.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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