Mead v Yang - [2009] FMCA 1160

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MEAD v YANG

[2009] FMCA 1160

BANKRUPTCY – Creditors petition – consideration of grounds of opposition.

Bankruptcy Act 1966 (Cth), s.52
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)

Legal Profession Act 1987 (NSW), ss.208F, 208J

Mead v Mead (No 2) [2009] FMCA 1107
Yang v Mead [2009] FMCA 636
Yang v Mead [2009] FCA 1202

Applicant:

COLIN ANTHONY MEAD

Respondent:

LEE CHIN LIEN YANG

File Number:

SYG 1714 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

ORDERS

The estate of Lee Chin Lien Yang is sequestrated.
The petitioning creditors costs, including any reserved costs, are to be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).
Pursuant to s.52(3) of the Bankruptcy Act 1966 (Cth) all proceedings under the sequestration order are stayed for a period of 21 days.
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 1714 of 2009

COLIN ANTHONY MEAD

Applicant

And

LEE CHIN LIEN YANG

Respondent

REASONS FOR JUDGMENT

Introduction and background

There is before the Court a creditors petition filed on 17 July 2009 seeking a sequestration order and other orders against Lee Chin Lien Yang. The petitioning creditor is the former husband of Ms Yang’s daughter. Ms Yang was involved in proceedings between Mr Mead and her daughter in the Family Court of Australia but the debt asserted in the petition arose out of other proceedings involving Mr Mead, Ms Yang and a company called Lamron Pty Ltd. Mr Mead obtained a costs order in his favour in those proceedings which resulted in a certificate as to the determination of costs issued on 27 July 2004 in the Local Court of NSW under ss.208F and 208J of the Legal Profession Act 1987 (NSW), being an assessment of party and party costs in the sum of $9,918.40. The certificate was filed in the Local Court at North Sydney on 18 August 2004. The costs were not paid. A bankruptcy notice was issued against Ms Yang and was served on 11 March 2008. Ms Yang challenged the bankruptcy notice in earlier proceedings in this Court[1]. That application was dismissed. Ms Yang appealed unsuccessfully against that decision to the Federal Court of Australia[2].
[1] Yang v Mead [2009] FMCA 636
[2] Yang v Mead [2009] FCA 1202
I have dealt with a creditors petition against Ms Yang’s daughter which was heard at the same time as this proceeding[3].
[3] Mead v Mead (No 2) [2009] FMCA 1107

The petition and evidence

The creditors petition is supported by the affidavit within it as well as the affidavit of service of…

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 Yang

Details

AGLC: Mead v Yang [2009] FMCA 1160
Case: [2009] FMCA 1160
Decision Date: 30 November 2009

CaseChat Overview and Summary

The case of Mead v Yang involved a bankruptcy petition filed against Lee Chin Lien Yang. The petitioner, Mead, alleged that Yang had committed an act of bankruptcy, leading to the current proceedings in the Federal Court of Australia. The primary dispute was whether Yang had indeed committed an act of bankruptcy, which would justify the sequestration of his estate and the appointment of a trustee.

The court was required to determine if Yang's actions constituted an act of bankruptcy under the Bankruptcy Act 1966 (Cth). This involved examining the specific transactions and obligations that were presented as evidence by the petitioner. The central issue was whether Yang had failed to pay debts as they fell due, a critical component in establishing the act of bankruptcy.

In examining the evidence, the court found that Yang had indeed failed to meet his financial obligations as they became due, thereby committing an act of bankruptcy. The court noted that the date of the act of bankruptcy was 15 July 2009, and it concluded that the petitioner had sufficiently demonstrated Yang's insolvency. Consequently, the court ordered the sequestration of Yang's estate and the stay of all proceedings under the sequestration order for a period of 21 days. The costs of the petitioning creditors were to be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth). The court also acknowledged that a consent to act as trustee had been signed by Mark Julian Robinson and lodged with the Official Receiver in Sydney.

Orders

Orders of the court

The estate of Lee Chin Lien Yang is sequestrated.

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

Pursuant to s.52(3) of the Bankruptcy Act 1966 (Cth) all proceedings under the sequestration order are stayed for a period of 21 days.

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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