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Liprini v Pascoe

Liprini v Pascoe

Case [2012] FMCA 715 22 August 2012

Proof of Debt

Costs

Review of Trustee's Decision

Bankruptcy Law

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIPRINI v PASCOE

[2012] FMCA 715

BANKRUPTCY – Application to review decision of a trustee in bankruptcy in respect of a proof of debt – insufficient evidence to determine amount of costs in the absence of assessment or agreement in the particular circumstances of this case.

Bankruptcy Act 1966 (Cth), ss.82, 84, 102, 104, 181A
Civil Procedure Act 2005 (NSW), ss.3, 98
Family Provision Act 1982 (NSW)
Legal Profession Act 1982 (NSW), ss.353, 363, 364

Federal Court Rules (Cth)
Uniform Civil Procedure Rules 2005 (NSW), r.42.2

Daevys v Official Trustee in Bankruptcy; In the Matter of Daevys [2011] FCA 398
Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52; [2007] HCA 56
Liprini v Liprini (unreported, Supreme Court of New South Wales, Equity Division, Nicholas J, No 2468 of 2008, 10 July 2009)
Liprini v Liprini [2010] NSWCA 126
Mbuzi v Favell [2011] FCA 1439
Official Trustee in Bankruptcy v Pastro [2004] FCA 713
P T Garuda Indonesia Pty Ltd v Grellman [1994] FCA 913
Re Payne; Ex Parte: Kim Brevis Hurst v Maurice Alexander Levi the Trustee of the Property of Neville Ross Payne; [1986] FCA 320
Re Robert Henry Masters; Ex Parte: Elizabeth Gerovich and Hazel Henley v Bernard Putnin [1985] FCA 282

Applicant:

KEVIN JAMES LIPRINI

Respondent:

SCOTT DARREN PASCOE AS TRUSTEE OF THE BANKRUPT ESTATE OF ALLAN STEPHEN LIPRINI

File Number:

SYG 858 of 2012

Judgment of:

Barnes FM

Hearing date:

7 June 2012

Delivered at:

Sydney

Delivered on:

22 August 2012

REPRESENTATION

Counsel for the Applicant:

Mr Anderson

Solicitors for the Applicant:

Collas Moro Ross

Solicitors for the Respondent:

Farrar Lawyers

ORDERS

The decision of the respondent Trustee of the bankrupt estate of Allan Stephen Liprini to reject the applicant’s amended proof of debt dated 9 February 2012 is confirmed.
The application of 18 April 2012 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 858 of 2012

KEVIN JAMES LIPRINI

Applicant

And

SCOTT DARREN PASCOE AS TRUSTEE OF THE BANKRUPT ESTATE OF ALLAN STEPHEN LIPRINI

Respondent

REASONS FOR JUDGMENT

The applicant, Mr Liprini, seeks review of a decision of the respondent, Mr Pascoe (as Trustee of the bankrupt estate of Allan Stephen Liprini), to reject an amended proof of debt dated 9 February 2012. The action was brought under s.104 of the Bankruptcy Act 1966 (Cth) (the Act) which provides that a creditor may apply to the court for a review of a decision of the trustee under subss.102(1), (3) or (4) in respect of a proof of debt.
Section 102 of the Act is relevantly as follows:
(1) The trustee shall examine each proof of debt and the grounds of the debt sought to be proved and, subject to the power of the Court to extend the time, shall, not later than 14 days after the expiration of the period specified in the notice of intention to declare a dividend as the period within which creditors may lodge their proofs of debt,…

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 Liprini v Pascoe

Details

AGLC: Liprini v Pascoe [2012] FMCA 715
Case: [2012] FMCA 715
Decision Date

CaseChat Overview and Summary

The case of Liprini v Pascoe involves an application by the applicant, Mr Kevin Liprini, seeking a review of a decision of the respondent, Mr Scott Darren Pascoe (as Trustee of the bankrupt estate of Allan Stephen Liprini), to reject the applicant’s amended proof of debt dated 9 February 2012. The matter was heard by Barnes FM and the judgment was delivered on 22 August 2012. The applicant sought to have the decision of the respondent to reject the proof of debt confirmed and for the application filed on 18 April 2012 to be dismissed. The primary legal issue was whether the court should order that the proof of debt be admitted in the amount of $76,035.47.

The court considered the statutory provisions of the Bankruptcy Act 1966 (Cth), the Civil Procedure Act 2005 (NSW) and the Legal Profession Act 1982 (NSW). The court also considered the relevant case law, including Daevys v Official Trustee in Bankruptcy; In the Matter of Daevys [2011] FCA 398. The court found that the decision of the respondent to reject the proof of debt was proper. The court noted that the applicant had obtained two orders in two separate proceedings in the Supreme Court and the Court of Appeal that the bankrupt pay his costs. However, it was submitted that the Trustee’s approach that because the costs had not been agreed or assessed there was no entitlement was an improper and incorrect approach to adopt in relation to the proof of debt. On the evidence before the court, it was not satisfied that the proof of debt should be admitted for the amount of $76,035.47. Nor was there sufficient evidence to enable the court to determine the amount of the costs that should be allowed on some other basis. The court concluded that the onus was on the applicant to provide sufficient evidence to enable quantification of the costs ordered in the Supreme Court and Court of Appeal proceedings. The court found that the applicant had not done so. The court was not required to formulate a proof of debt for the creditor in the absence of reasonable means of being satisfied not only that a debt exists but also to what extent. The decision of the respondent to reject the proof of debt in whole was confirmed and the application filed on 18 April 2012 was dismissed. The court will hear submissions in relation to costs.

Orders