Legal Research
Cases
Marshall v Clarke

Marshall v Clarke

Case [2003] FMCA 473 31 October 2003

Bankruptcy Act 1966

Void Composition

Set Aside Composition

Extension of Time

Insolvency Law

Type to search within this case.

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MARSHALL & ANOR v CLARKE & ORS

[2003] FMCA 473

BANKRUPTCY – Application for declaration.

Bankruptcy Act 1966, ss.5(1), 33, 33(1)(c), 63A(1), 64A(1), 64N, 64N(1)-(7), 187(1), 187(A), 188(1)-(6), 194, 196, 204(1), 213(1)-(3), 218(2)-(3), 222, 222(1)-(4), 227(7), 239, 239(1)-(2)
Bankruptcy Regulations, r16.01(2)

Re Beames Ex Parte Beneficial Finance Co Ltd (1985) 7 FCR 216
Re Forbes Ex Parte Industrial Acceptance Corporation Ltd (1974) 24 FLR 87
Huynh v Pascoe [2002] FCA 309 (FC)
Troy & Co v Cameron [2002] FMCA 42
Drake v Stanton [1999] FCA 1635
Re Cufari; Ex Parte Commissioner of Taxation v Huppatz (1992) 34 FCR 544
ReKukler; Ex Parte National Australia Bank v Kukler (1998) 87 FCR 352
Re Edwards Ex Parte Edwards (1987) 14 FCR 113
Re Brown Ex Parte Humes Ltd (1987) 74 ALR 611
Bendeich v Anderson (2000) FCA 90
Jones v Dunkel (1959) 101 CLR 298
Khera v NAB (1996) 141 ALR 416
QBSA v Ball & Anor [2001] FMCA 47
Re Williams; Ex parte Official Trustee in Bankruptcy (1990) 26 FCR 191

Applicants:

PETER NEIL MARSHALL and RENA MARIE MARSHALL

First Respondents:

ROBERT MICHAEL CLARKE and NARELLE LOUISE CLARKE

Second Respondent:

CHRISTOPHER MICHAEL WILLIAMSON

File No:

WZ 193 of 2002

Delivered on:

31 October 2003

Delivered at:

Perth

Hearing Date:

13 November 2002

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicants:

Mr G Mohen

Solicitors for the Applicants:

Friedman Lurie Singh

First Respondents:

No appearance

Counsel for the Second Respondent:

Mr C McLeod

Solicitors for the Second Respondent:

Deacons

ORDERS

(1)Pursuant to s.222 of the Bankruptcy Act 1966 the First Respondent’s Composition under Part X dated 19 December 2001 is declared void.
(2)The time for making Application pursuant to section 239 of the Bankruptcy Act be extended to 17 June 2002.
(3)Pursuant to s.239 of the Bankruptcy Act 1966 the Composition under Part X of the Bankruptcy Act 1966 of Robert Michael Clarke and Narelle Louise Clarke dated 19 December 2001 be set aside.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 193 of 2002

PETER NEIL MARSHALL AND RENA MARIE MARSHALL

Applicants

And

ROBERT MICHAEL CLARKE AND NARELLE LOUISE CLARKE

First Respondents

And

CHRISTOPHER WILLIAMSON

Second Respondent

REASONS FOR JUDGMENT

In this Application the Applicants Peter Neil Marshall (the First Applicant) and Rena Marie Marshall (the Second Applicant) by an Application filed 17 June 2002 seek orders against Robert Michael Clarke and Narelle Louise Clarke (the First Respondents) and Christopher Michael Williamson (the Second Respondent) pursuant to ss.222 and 239 of the Bankruptcy Act 1966 (the Bankruptcy Act).
The Application seeks an order pursuant to s.222 of the Bankruptcy Act 1966 to declare that the First Respondents’ composition under Part X of the Bankruptcy Act 1966 dated 19 December 2001 (the composition) is void. The Applicants further seek an order pursuant to s.239 of the Bankruptcy Act 1966 that the composition be set aside.
The Applicants then seek an order pursuant to s.222(7) and s.239(1) of the Bankruptcy Act for summary sequestration…

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.

Continue reading Marshall v Clarke

Details

AGLC: Marshall v Clarke [2003] FMCA 473
Case: [2003] FMCA 473
Decision Date: 31 October 2003

CaseChat Overview and Summary

Marshall v Clarke is a case where the applicant, Marshall, sought to have two separate compositions under Part X of the Bankruptcy Act 1966 declared void and set aside. These compositions were proposed by Robert Michael Clarke and Narelle Louise Clarke, the first and second respondents, respectively. The matter was heard in the Federal Court of Australia.

The central legal issue before the court was whether the two compositions were validly made. Specifically, the court had to determine whether the statutory requirements under the Bankruptcy Act were met, and if not, whether the compositions could be set aside. Additionally, the court considered the timing of the application to set aside the compositions, which was critical under section 239 of the Bankruptcy Act.

In delivering the judgment, the court found that the first respondent’s composition was not validly made as it did not comply with the statutory requirements for a composition under Part X of the Bankruptcy Act. The court also determined that the composition proposed by the first and second respondents was similarly invalid for the same reasons. Consequently, the court declared both compositions void and ordered that the time for making an application to set aside the second composition be extended. The final orders declared the first respondent’s composition void, extended the time for making an application to set aside the second composition, and set aside the second composition.

Orders

Orders of the court

(1) Pursuant to s.222 of the Bankruptcy Act 1966 the First Respondent’s Composition under Part X dated 19 December 2001 is declared void.

(2) The time for making Application pursuant to section 239 of the Bankruptcy Act be extended to 17 June 2002.

(3) Pursuant to s.239 of the Bankruptcy Act 1966 the Composition under Part X of the Bankruptcy Act 1966 of Robert Michael Clarke and Narelle Louise Clarke dated 19 December 2001 be set aside.

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.

Citations

AGLC Citation

Marshall v Clarke [2003] FMCA 473

Most Recent Citation

Marshall v Clarke (No 2) [2004] FMCA 371

Cases citing this decision · 3 of 3 shown

Australia and New Zealand Banking Group Limited v Shilton
[2015] FCCA 1783 Para 2

…t the composition should be set aside, requires determination. The Court was referred to the decision of McInnis FM in Marshall & Anor v Clarke & Ors [2003] FMCA 473 at paragraph 78 wherein His Honour found that a lack of notice was fatal to the meeting and composition. In my view, it must be. It is a clear breach…
Noonan v BMW Australia Finance Limited
[2013] FCCA 2222

…mited v Hubner [1999] FCA 1346 Civic Video Pty Ltd v Warburton [2013] FCA 934 Drake v Stanton [1999] FCA 1635 Magafas v Carantinos (2008) 222 FLR 185 Marshall & Anor v Clarke & Ors (2003) 180 FLR 297 Mulherin v Quinn Villages Pty Ltd (2012) 269 FLR 474 Napiat Pty Ltd v Salfinger; Re Salfinger (No 7) (2011) 284 ALR 581 Robertson v Banha…
Marshall v Clarke (No 2)
[2004] FMCA 371 Para 2

…At the time when those orders were made and judgment delivered (see Marshall & Anor v Clarke & Ors [2003] FMCA 473) the Court invited Counsel to make submissions in relation to costs. Both Counsel decided to file and serve written submissions. The time for filing and serving of written submissions was extended at…

View all 3 citing cases →

Cases cited in this decision · 10 of 10 shown

Huynh v Pascoe
[2002] FCA 309 Para 5

…The Court was reminded that the trustee has a duty to adjourn in accordance with s.64N(3) where no quorum exists (see Huynh v Pascoe [2002] FCA 309 (FC)). In relation to the issue of service reference was made to Troy & Co v Cameron [2002] FMCA 42 where it was held that a bankruptcy notice could be served upon so…
Troy & Company v Cameron
[2002] FMCA 42 Para 5

…64N(3) where no quorum exists (see Huynh v Pascoe [2002] FCA 309 (FC)). In relation to the issue of service reference was made to Troy & Co v Cameron [2002] FMCA 42 where it was held that a bankruptcy notice could be served upon solicitors who had indicated in writing that they had instructions to accept service…
QBSA v Ball
[2001] FMCA 47 Para 27

…Finally reliance was placed upon the decision of this Court in the matter of QBSA v Ball & Anor [2001] FMCA 47 as authority for the proposition that if a quorum did not exist then the composition must fail.…
Drake v Stanton
[1999] FCA 1635 Para 5

…s” should be the address which has been made known to the person being served as at the time closest to the date in question. See Drake v Stanton [1999] FCA 1635. It was submitted that in the present case no advice was given by Robert Nash that he would accept service for and on behalf of the Applicants. The last…
Re Kukler, Ronald; National Australia Bank Ltd v Kukler, Ronald
[1998] FCA 1165 Para 13

…on behalf of the Second Respondent reference was made on behalf of the Applicants to the case of Re Kukler; Ex Parte National Australia Bank v Kukler (1998) 87 FCR 352 and it was submitted that in the present case there was no delay of a kind similar to that found in the Kukler case. In that case there was a delay f…
Khera v National Australia Bank Ltd
[1996] FCA 1050 Para 25

…Reference was made to the decision of Khera v NAB (1996) 141 ALR 416 which had been referred to by the Second Respondent. It was submitted that the Court should look at page 429 of that decision where it is stated, “In our opinion, this ground, despite the width of its language, is confined to circumstances which rel…
Re Cufari; Ex parte Commissioner of Taxation v Huppatz
[1992] FCA 113 Para 6

…ast upon the affidavit of the Applicants to explain the delay in filing the Application (see re Cufari; Ex Parte Commissioner of Taxation v Huppatz (1992) 34 FCR 544). The failure to provide an explanation is unacceptable. The period of 21 days stipulated in s.239(1) of the Bankruptcy Act indicates how serious the A…
Re Beames; Ex parte Beneficial Finance Corporation Ltd
[1985] FCA 235 Para 3

…Counsel relied upon the decision of re Beames Ex Parte Beneficial Finance Co Ltd (1985) 7 FCR 216. It was submitted that s.222(1) could not normally be used to avoid a deed where notice had not been given to one creditor even though it was a substantial creditor. The Applicant’s case can be differentiated, it was s…
Jones v Dunkel
[1959] HCA 9 Para 7

…lated to benefit the creditors of the First Respondents generally. It is not necessary in my view to draw any inferences based upon the principles of Jones v Dunkel (1959) 101 CLR 298. I am satisfied that I am able to make findings of facts which in the present case are substantial in the form of the background summary…
Jones v Dunkel
[1959] HCA 8 Para 7

…t the creditors of the First Respondents generally. It is not necessary in my view to draw any inferences based upon the principles of Jones v Dunkel (1959) 101 CLR 298. I am satisfied that I am able to make findings of facts which in the present case are substantial in the form of the background summary unless other…

Legislation cited in this decision · 1

Bankruptcy Act 1966 (Cth)
33, 33(1)(c), 5(1), 63A(1), 64A(1), 64N,... 8 mentions (from Para 1)