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
ApplicantAND: 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 the court to approve is wrong.
3. I talked to law right about the prospect of appealing, I talked to law right looking into the possibility of the appeal at the District Court and I intend to take the steps as soon as possible.”
On 30 June 2022, the applicant filed a document in the Registry of the Court of Appeal of the Supreme Court of Queensland which was treated by that Court as a Notice of Appeal.
On 12 August 2022, Bond JA set aside the Notice of Appeal on the basis that there was no demonstrated standing on the part of the respondent for her to have instituted or continued with such appeal. In a judgment, His Honour also noted that in correspondence provided to the lawyers for the applicant, the Official Trustee in Bankruptcy had, on 5 May 2022, advised the respondent that it did not permit her to appeal the District Court judgment.
At the time of the hearing before the Court today the judgment debt remained due and owing to the applicant. The Court has had regard to affidavits of search and debt filed in that regard.
The respondent’s Application for Review was made pursuant to the provision of s. 256 of the Federal Circuit and Family Court of Australia Act 2022 (Cth) (the Act). At the time of the hearing before the Court, the respondent relied upon a number of affidavits, none of which disclosed any good basis for the Court going behind the judgment of the District Court of Queensland. There was no evidence of fraud, improper collusion or any other miscarriage of justice which had been made out in the respondent’s material. [1] There was otherwise no special circumstance justifying this Court going behind the judgment of the District Court. The submissions made by the applicant were to the effect that the District Court judgment was wrong.
[1] Corney v Brien (1951) 84 CLR 343 at [356] – [357] and Ramsay Health Care Australia v Compton
At the hearing before this Court, the applicant relied upon material which satisfied the Court that the sequestration order made pursuant to the provisions of s. 52 of the Bankruptcy Act 1966 (Cth) had been duly made, and that the judgment debt remains unpaid as at the present time.
The Court is satisfied that the respondent is unable to pay her debts as and when they fall due. In such circumstances, the Application for Review is without merit and is dismissed.
Costs should ordinarily properly follow the event in the light of the dismissal of the Application for Review. Those costs ought to be taxed unless agreed. The Court will hear submissions as to costs.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate: AO
Dated: 9 December 2022
(2017) 261 CLR 132 at [91].
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