Mackendrick v Lawless

Case [2018] FCA 735

FEDERAL COURT OF AUSTRALIA

Mackendrick v Lawless [2018] FCA 735

File number: WAD 227 of 2017
Judge: BANKS-SMITH J
Date of judgment: 22 May 2018
Date of publication of reasons: 23 May 2018
Catchwords: BANKRUPTCY AND INSOLVENCY – Creditor's petition – Act of bankruptcy comprised failure to comply with bankruptcy notice founded on a judgment debt for taxed costs – Application to review decision of Registrar making sequestration order against the respondent's estate – Rehearing – Where no justification to go behind judgment debt – Where no sufficient cause to prevent making sequestration order
Legislation:

Bankruptcy Act 1966 (Cth) s 52

Federal Court of Australia Act 1976 (Cth)

Federal Court (Bankruptcy) Rules 2016 (Cth) rr 4.06, 7.05
Cases cited:

Cottrell v Nicholls [2004] FCA 102

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

Lawless v Mackendrick [No 4] [2013] WASC 272

Lawless v Mackendrick [No 3] [2016] WASCA 208

Martin v Commonwealth Bank of Australia [2001] FCA 87; (2001) 217 ALR 634

Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 345 ALR 534

Totev v Sfar [2008] FCAFC 35; (2008) 167 FCR 193

Zdrilic v Hickie & Anor [2016] FCAFC 101; (2016) 246 FCR 532

Date of hearing: 15 May 2018
Registry: Western Australia
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Category: Catchwords
Number of paragraphs: 53
Counsel for the Applicants: The applicants appeared in person
Counsel for the Respondent: The respondent appeared in person

ORDERS

WAD 227 of 2017
BETWEEN:

ALASTAIR MACKENDRICK

First Applicant

PAMELA GABRIELS

Second Applicant
AND:

KEVIN GERARD LAWLESS

Respondent

JUDGE:

BANKS-SMITH J

DATE OF ORDER:

22 MAY 2018

THE COURT ORDERS THAT:

1.The Registrar's order made 28 August 2017 is affirmed.

2.The respondent's application for review is otherwise dismissed.

3.The respondent is to pay the applicants' costs to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

BANKS-SMITH:

Background

  1. On 28 August 2017 a Registrar of this Court made a sequestration order in respect of the estate of the respondent, Mr Kevin Lawless. The applicants, Dr Mackendrick and Ms Gabriels, are the petitioning creditors. Mr Lawless now seeks a review of the Registrar’s order. A review is provided for under s 35A of the Federal Court of Australia Act 1976 (Cth).

  2. Such a review is conducted de novo: Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 [95]; Totev v Sfar [2008] FCAFC 35; (2008) 167 FCR 193 [14] - [15]; Martin v Commonwealth Bank of Australia [2001] FCA 87; (2001) 217 ALR 634; Zdrilic v Hickie & Anor [2016] FCAFC 101; (2016) 246 FCR 532 [24] – [32], [66].

  3. The parties are all self-represented on this application.

  4. I made formal orders on 22 May 2018 and now publish my reasons.

    Chronology of key events

  5. In 2006, Mr Lawless commenced proceedings in the Supreme…

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Details
AGLC
Mackendrick v Lawless [2018] FCA 735
Case
[2018] FCA 735
Decision Date

CaseChat Overview and Summary

In the case of Mackendrick v Lawless, the respondent, Lawless, applied for a review of a sequestration order made by the Registrar against his estate. The order was founded on a bankruptcy notice based on a judgment debt for taxed costs. The applicant argued that there was no justification to go behind the judgment debt and no sufficient cause to prevent the sequestration order. The case was heard in the Federal Court of Australia.

The legal issue before the court was whether there were grounds to review the sequestration order made by the Registrar. The court had to consider whether the applicant had provided a justification to go behind the judgment debt, and if there was sufficient cause to prevent the sequestration order. The applicant argued that the judgment debt was unfair and unjust, and that there were exceptional circumstances that warranted the order being set aside.

The court found that there was no justification to go behind the judgment debt, and no sufficient cause to prevent the sequestration order. The court held that the Registrar's order was valid and affirmed it. The court found that the applicant had not provided any evidence to support his claims of unfairness and injustice, and that there were no exceptional circumstances that warranted the order being set aside. The court also noted that the applicant had failed to provide any evidence to show that he was unable to pay the judgment debt.

The court dismissed the respondent's application for review and affirmed the Registrar's order made on 28 August 2017. The court also ordered that the respondent pay the applicants' costs to be assessed if not agreed. The court held that the applicant had not demonstrated any grounds for the court to interfere with the Registrar's order, and that the sequestration order was valid. The court further held that the respondent was responsible for paying the costs of the application for review.

Orders

Orders of the court

1. The Registrar's order made 28 August 2017 is affirmed.

2. The respondent's application for review is otherwise dismissed.

3. The respondent is to pay the applicants' costs to be assessed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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