Macarthur Central Shopping Centre Pty Ltd v Pan - [2022] FedCFamC2G 1029

Federal Circuit and Family Court of Australia
(DIVISION 2)
Macarthur Central Shopping Centre Pty Ltd v Pan [2022] FedCFamC2G 1029

File number(s): BRG 18 of 2022

Judgment of: JUDGE EGAN

Date of judgment: 9 December 2022

Catchwords: BANKRUPTCY – Application for review of sequestration order made by Registrar – no evidence adduced by respondent to warrant the Court going behind the judgment debt ordered by the District Court of Queensland – no other special circumstance demonstrated so as to justify the overturning of the sequestration order – application for review dismissed.

Legislation:
Bankruptcy Act 1966 (Cth) s.52.

Federal Circuit and Family Court of Australia Act 2022 (Cth) s. 256.

Cases Cited:
Corney v Brien (1951) 84 CLR 343

Ramsay Health Care Australia v Compton (2017) 261 CLR 132

Division: Division 2 General Federal Law

Number of paragraphs: 11

Date of last submission/s: 8 December 2022

Date of hearing: 8 December 2022

Place: Brisbane

Counsel for the Applicant Mr J Hughes

Solicitor for the Applicant Allens

The Respondent: Self-Represented Litigant
ORDERS

BRG 18 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF DI PAN

BETWEEN:
MACARTHUR CENTRAL SHOPPING CENTRE PTY LTD
Applicant

AND:
DI PAN

Respondent

order made by:

JUDGE EGAN

DATE OF ORDER:

9 December 2022

THE COURT ORDERS THAT:
1.The Application for Review of the Registrar’s decision filed on 20 April 2022 be dismissed.
2.The Respondent pay the Applicant’s costs of and incidental to the Application for Review, to be assessed and paid out of the bankrupt estate.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction

On 19 January 2022, the applicant commenced bankruptcy proceedings in this Court by filing a Creditors Petition wherein it was asserted that a judgment debt obtained by the applicant against the respondent in the District Court of Queensland in the amount of $54,483.63 had remained unpaid.
The respondent had not filed any Notice of Appeal from the judgment of the District Court, the time for the filing of any such notice having expired on 10 December 2021.
On 30 March 2022, a sequestration order was made against the estate of the respondent by Registrar Luxton.
The respondent filed an Application for Review of the sequestration order in this Court on 20 April 2022. The grounds upon which orders were sought were as follows:
“Orders Sought
1. The amount the creditor is putting against me is wrong and the Sequestration Order should not be made.
2. I am challenging the amount in the other court (District Court) and I am going to…

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.

Keep reading for free

Create a free CaseChat account to read Macarthur Central Shopping Centre Pty Ltd v Pan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] FedCFamC2G 1029
Decision Date

CaseChat Overview and Summary

Macarthur Central Shopping Centre Pty Ltd filed an application for review against Di Pan regarding a sequestration order made by the Federal Circuit and Family Court of Australia. The applicant sought to have the order reviewed on the basis that the judgment debt owed to the applicant was allegedly incorrect and the sequestration order should not have been made. The respondent claimed that she was challenging the amount in another court and was seeking approval for the wrong amount. The application was dismissed by the court.

The legal issues before the court were whether there was any evidence to warrant the Court going behind the judgment debt ordered by the District Court of Queensland and whether any special circumstances existed to justify overturning the sequestration order. The court considered the affidavits filed by the respondent and found no evidence of fraud, improper collusion or any other miscarriage of justice. The court held that there were no special circumstances justifying going behind the judgment of the District Court.

The court dismissed the application for review and ordered the respondent to pay the applicant's costs of and incidental to the application for review, to be assessed and paid out of the bankrupt estate. The court found that the sequestration order was duly made and that the judgment debt remained unpaid. The respondent was unable to pay her debts as and when they fell due. The court held that the application for review was without merit and was dismissed.

Orders