Mead v Mead (No.2) - [2009] FMCA 1107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MEAD v MEAD (No.2)

[2009] FMCA 1107

BANKRUPTCY – Creditors petition – consideration of grounds of opposition.

Bankruptcy Act 1966, ss.40, 52
Civil Procedure Act 2005 (NSW), s.101
Evidence Act 1995 (Cth), s.91
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)

Mead v Mead [2009] FMCA 637
Yang v Mead [2009] FCA 1202

Applicant:

COLIN ANTHONY MEAD

Respondent:

LUCY GUITAR MEAD

File Number:

SYG 1713 of 2009

Judgment of:

Driver FM

Hearing date:

11 November 2009

Delivered at:

Sydney

Delivered on:

30 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr V Bedrossian

Solicitors for the Applicant:

Etheringtons

The Respondent appeared in person

Solicitors for the Supporting Ms D Funston
Creditor:

ORDERS

The estate of Lucy Guitar Mead is sequestrated.
The petitioning creditors costs, including any reserved costs, are to be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).
The Court notes that the date of the act of bankruptcy is 15 July 2009.
The Court notes that a consent to act as trustee has been signed by Mark Julian Robinson and has been lodged with the Official Receiver in Sydney.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1713 of 2009

COLIN ANTHONY MEAD

Applicant

And

LUCY GUITAR MEAD

Respondent

REASONS FOR JUDGMENT

Introduction and background

The petitioning creditor is the former husband of the respondent debtor. They have been engaged in protracted (and expensive) litigation in the Family Court of Australia since 1996. In the course of interim property proceedings in 2001 his Honour Cohen J made a costs order against Ms Mead to be payable within a fixed period[1]. The costs were taxed in the Family Court in the sum of $100,143.09. The certificate of taxation was filed in the District Court of New South Wales on 24 April 2002. A bankruptcy notice was issued on 6 March 2008 asserting a debt of $154,267 which included interest of $54,123.91 claimed pursuant to s.101 of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW). The amount claimed in the creditors petition is $167,535.27, which includes interest of $67,392.18 accrued up to 16 July 2009.
[1] The orders were amended under the slip rule on 28 November 2003 by his Honour to correct the date of his judgment.

The petition and evidence

The petition is supported by the affidavit contained within it, as well as the affidavit of service of Michael Lim made on 25 August 2009, the affidavit of debt of Paul Martin Etherington made on 10 November 2009 and the affidavit of search of Michael Lim made on the same day. I also received the affidavit of Paul Martin Etherington made on 6 November 2009 detailing the outcome of final property proceedings between the parties in the Family Court and proceedings in the Supreme Court of NSW also involving the parties. As a result of those proceedings, the debtor has incurred substantial additional liabilities to the creditor. Ms 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 (No.2)

Details

AGLC: Mead v Mead (No.2) [2009] FMCA 1107
Case: [2009] FMCA 1107
Decision Date: 30 November 2009

CaseChat Overview and Summary

Mead v Mead (No.2) was a matter heard by the Federal Court of Australia where the dispute involved the sequestration of the estate of Lucy Guitar Mead. The petition was brought by various creditors seeking to have her declared bankrupt due to her inability to meet her financial obligations. The core issue before the Court was whether the conditions for sequestration, as outlined in the Bankruptcy Act 1966 (Cth), were met in this case.

The legal issues the Court had to address included verifying the validity of the petition, confirming that the act of bankruptcy occurred, and ensuring that the petitioner's actions were within the bounds of the law. The Court also needed to determine if Lucy Guitar Mead had sufficient means to pay her debts and whether the petitioning creditors had met their evidentiary burden. The decision hinged on whether the requirements for a valid act of bankruptcy were met and if Lucy Guitar Mead's financial situation justified the sequestration of her estate.

In reaching its decision, the Court examined the evidence presented by the petitioner and the respondent. It found that the petitioning creditors had demonstrated that Lucy Guitar Mead had committed an act of bankruptcy by failing to pay her debts as they fell due. The Court accepted that the creditors had met their burden of proof and that the act of bankruptcy occurred on 15 July 2009. The Court also considered the financial status of Lucy Guitar Mead and concluded that she did not have the means to pay her debts. Based on these findings, the Court ordered the sequestration of her estate, approved the costs of the petitioning creditors, and noted the consent of Mark Julian Robinson to act as trustee.

Orders

Orders of the court

The estate of Lucy Guitar Mead is sequestrated.

The petitioning creditors costs, including any reserved costs, are to be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).

The Court notes that the date of the act of bankruptcy is 15 July 2009.

The Court notes that a consent to act as trustee has been signed by Mark Julian Robinson and has been lodged with the Official Receiver in Sydney.

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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