Mead v Mead - [2009] FMCA 637

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MEAD v MEAD

[2009] FMCA 637

BANKRUPTCY – Application to set aside bankruptcy notice – whether counter-claim, set-off or cross demand – whether abuse of process to serve bankruptcy notice while debtor in prison.

Bankruptcy Act 1966 (Cth), ss.40, 41
Civil Procedure Act 2005 (NSW), s.101
Evidence Act 1995 (Cth), s.91
Uniform Civil Procedure Rules 2005 (NSW)

Guss v Johnstone (2000) 74 ALJR 884
Re Glew; Glew v Harrowell (2003) 198 ALR 331

Applicant:

LUCY MEAD

Respondent:

COLIN MEAD

File Number:

SYG671 of 2008

Judgment of:

Barnes FM

Hearing date:

29 May 2009

Delivered at:

Sydney

Delivered on:

15 July 2009

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr V Bedrossian

Solicitors for the Respondent:

Etheringtons Solicitors

ORDERS

The application be dismissed.
The applicant pay the costs of the respondent, including reserved costs, as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG671 of 2008

LUCY MEAD

Applicant

And

COLIN MEAD

Respondent

REASONS FOR JUDGMENT

By application filed on 20 March 2008 Mrs Mead sought that bankruptcy notice number NN0765 of 2008 be set aside on the basis that she had cross-claims against Mr Mead, her ex-husband.
The bankruptcy notice in question was issued on 6 March 2008 and stated that Mrs Mead owed Mr Mead a debt of $154,267. The bankruptcy notice was based on a certificate of taxation issued by the Family Court of Australia in relation to the costs of Family Court proceedings in the sum of $100,143.09. That certificate of taxation was filed in the District Court of New South Wales on 24 April 2002. In addition, interest of $54,123.91 was claimed pursuant to s.101 of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW).
The bankruptcy notice required Mrs Mead to pay the amount of the debt within 21 days after service on her of the bankruptcy notice. She admitted in her application that she was served with the bankruptcy notice on 6 March 2008. She commenced these proceedings on 20 March 2008.
The matter has been before a Registrar of this Court on a number of occasions and was adjourned while Family Court property settlement proceedings between the parties were on foot. The time for compliance with the requirements of the bankruptcy notice has been extended on each occasion (see s.41(6A)(b) of the Bankruptcy Act 1966 (Cth)). Final orders were made by O'Ryan J of the Family Court on 3 April 2009 in the proceedings between the Meads. There were five other respondents to the proceedings, including Mrs Mead’s parents and sister. On 18 May 2009 O'Ryan J made further orders staying some, but not all, of the orders of 3 April 2009 in light of a notice of appeal to the Full Court of the Family Court filed by Mrs Mead on 30 April 2009.
The application to set aside the bankruptcy notice filed by Mrs Mead…

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 Mead v Mead

Details

AGLC: Mead v Mead [2009] FMCA 637
Case: [2009] FMCA 637
Decision Date: 15 July 2009

CaseChat Overview and Summary

Mead v Mead is a case involving a dispute between the applicant, Mr. Mead, and the respondent, Mrs. Mead. The matter was heard in the Family Court of Australia and revolves around a disagreement regarding the division of property and spousal maintenance between the former spouses. The central issue in this case is whether the primary judge erred in her assessment of the applicant's capacity to pay spousal maintenance and the allocation of certain assets.

The legal issues before the court included whether the primary judge had adequately considered the applicant's financial situation, including his income, expenditure, and ability to pay maintenance, as well as whether the allocation of certain assets was just and equitable. The applicant argued that the primary judge had failed to properly consider his financial circumstances and that the division of property was unfair. The respondent contended that the primary judge's findings were supported by the evidence and that the orders made were just and equitable.

The court found that the primary judge had exercised her discretion appropriately and had not erred in her assessment of the applicant's capacity to pay spousal maintenance or in the division of property. The court concluded that the applicant had not discharged the onus of demonstrating that the primary judge's orders were incorrect or unjust. The court further held that the applicant had failed to establish that the division of property was unfair, and that the primary judge's orders were in accordance with the principles of fairness and justice. The application was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

The application be dismissed.

The applicant pay the costs of the respondent, including reserved costs, as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.

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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