Macquarie Bank Ltd v Bardetta - [2005] FCA 507

FEDERAL COURT OF AUSTRALIA
Macquarie Bank Limited v Bardetta [2005] FCA 507
BANKRUPTCY – husband and wife formerly parties to Family Court proceedings – where Bank instituted Supreme Court of New South Wales proceedings against husband before husband declared bankrupt – whether leave should be granted to Bank pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to commence proceedings in Family Court of Australia and to take fresh steps in Supreme Court proceedings – consent orders made in Family Court to transfer property from husband to wife pursuant to s 79(1) of Family Law Act 1975 (Cth) during currency of Supreme Court proceedings – order sought under s 79A of Family Law Act 1975 (Cth) to vary or set aside order made under s 79(1) of the same – where undertaking provided by Bank – costs of wife’s appearance at hearing awarded against Bank
Bankruptcy Act 1966 (Cth) s 58(3)
Family Law Act 1975 (Cth) ss 79 and 79A
Allanson v Midland Credit Ltd (1977) 30 FLR 108 applied
Sturdy Components Pty Ltd v Trustee of the Bankrupt Estate of Sturt [2000] FCA 884 referred to
Fraser v Commissioner of Taxation (1996) 69 FCR 99 applied
Semmens v Commonwealth and Anor (1989) 99 FLR 294 considered
Green v Official Trustee in Bankruptcy [2001] FCA 1644 followed
MACQUARIE BANK LIMITED v JOSEPH BARDETTA, ANA MARIA BARDETTA AND CHRISTOPHER JOHN PALMER IN HIS CAPACITY AS TRUSTEE IN BANKRUPTCY APPOINTED TO THE BANKRUPT ESTATE OF JOSEPH BARDETTA
NSD 602 OF 2005
CONTI J
26 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 602 OF 2005

BETWEEN:

MACQUARIE BANK LIMITED
APPLICANT

AND:

JOSEPH BARDETTA
FIRST RESPONDENT

ANA MARIA BARDETTA
SECOND RESPONDENT

CHRISTOPHER JOHN PALMER IN HIS CAPACITY AS TRUSTEE IN BANKRUPTCY APPOINTED TO THE BANKRUPT ESTATE OF JOSEPH BARDETTA
THIRD RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

26 APRIL 2005

WHERE MADE:

SYDNEY

Upon the applicant by its counsel undertaking to the Court to hold the benefit of any order made in the Family Court proceedings on behalf of the bankrupt estate of Joseph Bardetta,
THE COURT ORDERS THAT:
1.Leave be granted to Macquarie Bank Limited (‘the Bank’), pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth), to continue and/or to take fresh steps in the Commercial List Proceedings No 50126 of 2004 of the Supreme Court of New South Wales.
2.Further or in the alternative, leave be granted to the Bank pursuant to section 58(3)(b) of the Bankruptcy Act 1966 (Cth), to take any fresh steps it deems necessary in the said Supreme Court proceedings in relation to the Bank’s notice of motion filed on 28 February 2005 in those proceedings.
3.Leave be granted to the Bank to commence proceedings in the Family Court of Australia for orders under s 79A(1)(a) of the Family Law Act 1975 (Cth) setting aside or varying consent orders made by the Family Court of Australia on 25 August 2004 in proceedings No SYF 3610 of 2004.
4.The…

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: [2005] FCA 507
Decision Date: 26 APRIL 2005

CaseChat Overview and Summary

The case of Macquarie Bank Limited v Bardetta involved a dispute where the Bank sought to enforce a security interest over property held in the name of the bankrupt, Mr Bardetta, and his wife, Ms Bardetta. The dispute arose in the context of ongoing proceedings in the Supreme Court of New South Wales and the Family Court of Australia. The Bank sought leave to continue and take fresh steps in the Supreme Court proceedings and to commence new proceedings in the Family Court to set aside or vary consent orders. The primary legal issues before the court were whether the Bank was entitled to the relief sought under sections 58(3)(b) of the Bankruptcy Act 1966 and 79A(1)(a) of the Family Law Act 1975.

The court considered the statutory framework and the particular circumstances of the case. It noted that the Bank had a legitimate interest in securing its debt and that the consent orders in the Family Court had not adequately addressed the Bank’s security interest. The court found that the Bank's applications were warranted and granted the requested relief. The court emphasised the importance of protecting the interests of creditors in bankruptcy proceedings and recognised the need for flexibility in legal processes to achieve just outcomes.

The court ordered that the Bank be granted leave to continue and take fresh steps in the Supreme Court proceedings and to commence new proceedings in the Family Court. Additionally, the court ruled on the costs associated with the proceedings, ordering the Bank to pay specific amounts to the respondents. The orders reflect a balanced approach, recognising the rights of the Bank while also considering the costs implications for the respondents. The court's decision ensures that the Bank can pursue its legitimate interests while also managing the financial burden on the respondents.

Orders

Orders of the court

1. Leave be granted to Macquarie Bank Limited (‘the Bank’), pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth), to continue and/or to take fresh steps in the Commercial List Proceedings No 50126 of 2004 of the Supreme Court of New South Wales.

2. Further or in the alternative, leave be granted to the Bank pursuant to section 58(3)(b) of the Bankruptcy Act 1966 (Cth), to take any fresh steps it deems necessary in the said Supreme Court proceedings in relation to the Bank’s notice of motion filed on 28 February 2005 in those proceedings.

3. Leave be granted to the Bank to commence proceedings in the Family Court of Australia for orders under s 79A(1)(a) of the Family Law Act 1975 (Cth) setting aside or varying consent orders made by the Family Court of Australia on 25 August 2004 in proceedings No SYF 3610 of 2004.

4. The Bank to pay the costs of the third respondent in his capacity as trustee of the bankrupt estate of the first respondent assessed in the sum of $1,758.00 (inclusive of GST).

5. The Bank to pay the costs of the second respondent in relation to her appearance in this Court by counsel on 22 April 2005.

6. Liberty to any party to apply generally on two Court business days’ notice.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CONTI J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: CONTI J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 602 OF 2005

BETWEEN:	MACQUARIE BANK LIMITED APPLICANT
AND:	JOSEPH BARDETTA FIRST RESPONDENT ANA MARIA BARDETTA SECOND RESPONDENT CHRISTOPHER JOHN PALMER IN HIS CAPACITY AS TRUSTEE IN BANKRUPTCY APPOINTED TO THE BANKRUPT ESTATE OF JOSEPH BARDETTA THIRD RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	26 APRIL 2005
WHERE MADE:	SYDNEY