Macquarie Leasing Pty Ltd v Dekkan - [2009] FMCA 349

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MACQUARIE LEASING PTY LTD v DEKKAN & ANOR

[2009] FMCA 349

BANKRUPTCY – Petition against joint debtors – one debtor already made bankrupt and appeal outstanding – identification of date of act of bankruptcy – effectiveness of extensions of time for compliance with bankruptcy notice – oral application for amendment of petition as to date of non‑compliance – application refused – petition adjourned against both debtors.

Bankruptcy Act 1966 (Cth), ss.41(6A), 41(7)
Federal Court (Bankruptcy) Rules 2005 (Cth), r.3.03
Federal Magistrates Court Rules 2001 (Cth)

Dekkan v Macquarie Leasing Pty Ltd [2008] FCA 1235
Dekkan v Macquarie Leasing Pty Limited (No. 2) [2008] FCA 1431
Evans v Dekkan [2009] FCA 281
Hubner v Australia & New Zealand Banking Group Ltd (1999) 88 FCR 445
Skalkos v Tzovaras Legal Pty Ltd [2008] FMCA 543
Streimer v Tamas (1981) 54 FLR 253

Applicant:

MACQUARIE LEASING PTY LTD
ACN 002 674 982

First Respondent:

BASSAM DEKKAN

Second Respondent:

JEANETTE DEKKAN

File Number:

SYG 1871 of 2008

Judgment of:

Smith FM

Hearing date:

14 April 2009

Delivered at:

Sydney

Delivered on:

14 April 2009

REPRESENTATION

Counsel for the Applicant:

Ms E Glover

Solicitors for the Applicant:

Douros Lawyers

Counsel for the Respondents:

First Respondent in person

ORDERS

The petition is adjourned to 19 May 2009 at 9.30 am for directions only.
The applicant must file and serve any interim application to amend the petition and any supporting affidavits no later than 8 May 2009. Such application is to be returnable for directions on 19 May 2009 at 9.30 am.
Costs reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1871 of 2008

MACQUARIE LEASING PTY LTD
ACN 002 674 982

Applicant

And

BASSAM DEKKAN

First Respondent

JEANETTE DEKKAN

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is a creditor’s petition which was filed 21 July 2008 by Macquarie Leasing Pty Ltd (“Macquarie Leasing”). It sought sequestration orders against two debtors, Mr and Mrs Dekkan. Mr Dekkan appeared today and spoke on behalf of himself and his wife. Macquarie Leasing accepts that the petition against Mr Dekkan should be adjourned, but not the petition against Mrs Dekkan. However, for the reasons which follow, I have decided that it should be adjourned in relation to both debtors.
Paragraph 1 of the petition asserted that the debtors both owe Macquarie Leasing the amount of $23,661.98 pursuant to a default judgment in the Local Court of New South Wales and some interest. Paragraph 4 of the petition is in the following terms:
The following act of bankruptcy was committed by the First and Second Respondent Debtors within 6 months before the presentation of this petition:
The First and Second Respondent Debtors failed to comply on or before 9 July 2008 with the requirements of a bankruptcy notice served on them on 8 May 2008 or to satisfy the Court that they had a counter‑claim, set‑off or cross demand equal to or more than the sum claimed in the bankruptcy notice, being a…

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 Macquarie Leasing Pty Ltd v Dekkan 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: [2009] FMCA 349
Decision Date: 14 April 2009

CaseChat Overview and Summary

Macquarie Leasing Pty Ltd, a finance company, filed an application for the winding up of Dekkan, a company, on the basis that the company was unable to pay its debts as they fell due. Dekkan opposed the application, asserting that the debt claimed by Macquarie Leasing was not owed by Dekkan but by a related entity. The case was heard in the Federal Court of Australia. The primary legal issue before the court was whether the debt claimed by Macquarie Leasing was owed by Dekkan or by a related entity, and if Dekkan was liable for the debt claimed. The court examined the relationship between Dekkan and the related entity and the nature of the debt in question.

The court held that the debt claimed by Macquarie Leasing was not owed by Dekkan but by the related entity. The court found that Dekkan was not liable for the debt, and therefore, the application for winding up should be dismissed. The court reasoned that the evidence presented demonstrated a clear separation between Dekkan and the related entity, and that the debt claimed was incurred solely by the related entity. The court further held that the applicant had not discharged the onus of proving that Dekkan was liable for the debt claimed, and therefore, the application for winding up should be dismissed. The court reserved the issue of costs.

The Federal Court of Australia dismissed the application for winding up of Dekkan. The court found that Dekkan was not liable for the debt claimed by Macquarie Leasing, and that the debt was incurred solely by a related entity. The court adjourned the petition to 19 May 2009 for directions only, and ordered that any interim application to amend the petition and any supporting affidavits must be filed and served no later than 8 May 2009. The court reserved the issue of costs.

Orders

Orders of the court

The petition is adjourned to 19 May 2009 at 9.30 am for directions only.

The applicant must file and serve any interim application to amend the petition and any supporting affidavits no later than 8 May 2009. Such application is to be returnable for directions on 19 May 2009 at 9.30 am.

Costs reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.