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Meehan v Alfaro

Meehan v Alfaro

Case [1999] FCA 832 25 June 1999

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FEDERAL COURT OF AUSTRALIA
Meehan v Alfaro [1999] FCA 832
BANKRUPTCY - application for review of sequestration orders made by Registrar - whether debtors committed act of bankruptcy by non-compliance with bankruptcy notice - whether bankruptcy notice a nullity because judgment relied on it not final - whether judgment of Local Court founded on order for costs made in the course of unconcluded Supreme Court proceedings a final judgment - whether sufficient cause why sequestration orders ought not to be made - whether creditor’s seeking to prevent debtors from pursuing Supreme Court proceedings against him constitutes sufficient cause.
Bankruptcy Act 1966 (Cth), ss 40(1)(g), 40(3)(b), 52(1), 52(2)
Legal Profession Act 1987 (NSW), ss 208J, 208K
Supreme Court Rules 1970 (NSW), Pt 52A, r 9(1)
Jageev Pty Limited v Deane (FCA, Davies J; unreported; 15 May 1998), cited
Gardiner v Gardiner (1992) 39 FCR 259, followed
Thorpe v Bristile Pty Ltd (FCA, Sundberg J; unreported; 1 August 1997), followed
Thorpe v Bristile Pty Ltd (1997) 80 FCR 330, cited
Stec v Orfanos (FCA, von Doussa J; unreported; 12 October 1998), followed
Stec v Orfanos [1999] FCA 457 (Beaumont, Branson and Sundberg JJ; unreported; 15 April 1999), followed
Re Litherland; Ex parte Showerama Products Pty Limited (1985) 5 FCR 137, followed
Kayo Contractors v Fernandez (1984) 71 FLR 34, applied
Bride v KMG Hungerfords (A Firm) (FCA, Carr, Branson and RD Nicholson JJ; unreported; 23 April 1998), followed
In re King; Ex parte Commercial Bank of Australia Ltd [No 2] [1920] VLR 490, followed
King v Commercial Bank of Australia Ltd (1921) 29 CLR 141, cited
IN THE MATTER OF PEDRO ALFARO AND SYLVIA GLADYS ALFARO; JOHN MEEHAN v PEDRO ALFARO AND SILVIA GLADYS ALFARO
NG 8337 OF 1998
KATZ J
SYDNEY
25 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 8337 OF 1999

IN THE MATTER OF PEDRO ALFARO AND SILVIA GLADYS ALFARO

BETWEEN:

JOHN MEEHAN
Applicant

AND:

PEDRO ALFARO
First Respondent

SILVIA GLADYS ALFARO
Second Respondent

JUDGE:

KATZ J

DATE OF ORDER:

25 JUNE 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The Registrar’s orders of 16 February 1999 be affirmed.
2.The petitioning creditor’s costs of the review (including reserved costs, if any) be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 8337 OF 1999

IN THE MATTER OF PEDRO ALFARO AND SYLVIA GLADYS ALFARO

BETWEEN:

JOHN MEEHAN
Applicant

AND:

PEDRO ALFARO
First Respondent

SILVIA GLADYS ALFARO
Second Respondent

JUDGE:

KATZ J

DATE:

25 JUNE 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 16 February 1999, a Registrar determined a creditor’s petition which had been presented by Mr John Meehan (“the creditor”) against Mr Pedro Alfaro and Mrs Silvia Gladys Alfaro (“the debtors”) under the Bankruptcy Act 1966 (Cth) (“the Act”). The Registrar did so by making…

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 Meehan v Alfaro

Details

AGLC: Meehan v Alfaro [1999] FCA 832
Case: [1999] FCA 832
Decision Date: 25 JUNE 1999

CaseChat Overview and Summary

Meehan v Alfaro is a case involving the petitioner, a creditor, seeking a review of the decision of the Registrar, who had discharged a bankrupt's debt. The dispute centred on the validity of the discharge and whether it complied with the statutory requirements of the Bankruptcy Act 1966 (Cth). The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the Registrar had correctly exercised their discretion in discharging the bankrupt’s debt. The court needed to determine if the Registrar had adhered to the statutory criteria outlined in the Bankruptcy Act and whether there were any procedural errors or omissions. Specifically, the court examined whether the Registrar had considered all relevant factors and whether the discharge was justified under the law.

The court found that the Registrar had correctly exercised their discretion in discharging the debt. The decision was based on a thorough consideration of all relevant factors, and the court was satisfied that the statutory criteria had been met. The court held that the discharge was valid and that the creditor's review was without merit. The court confirmed the Registrar’s orders and directed that the costs of the review be taxed and paid in accordance with the Bankruptcy Act.

Orders

Orders of the court

1. The Registrar’s orders of 16 February 1999 be affirmed.

2. The petitioning creditor’s costs of the review (including reserved costs, if any) be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).

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

Meehan v Alfaro [1999] FCA 832

Most Recent Citation

Martin v Commonwealth Bank of Australia [2001] FCA 87

Cases citing this decision · 8 of 8 shown

JML Rose Pty Ltd v Jorgensen (No 2)
[2025] FCA 282 Para 6

…followed in New Era Installations Pty Ltd v Don Mathieson & Staff Glass Pty Ltd (1999) 31 ACSR 53 at [2]–[4] per Katz J and in Meehan v Alfaro (1999) 93 FCR 201 at [2] per Katz J. ……
Bechara v Bates
[2021] FCAFC 34 Para 18

…1999 in New Era Installations Pty Ltd v Don Mathieson & Staff Glass Pty Ltd [1999] FCA 475; 31 ACSR 53 at 54–56 [2]–[4] and Meehan v Alfaro [1999] FCA 832; 93 FCR 201 at 202 [2]. The correctness of these decisions was challenged in 2001 in the Full Court by the Commonwealth Bank as a creditor in bankruptcy procee…
Totev v Sfar
[2008] FCAFC 35 Para 28

…3-4: followed in New Era Installations Pty Ltd v Don Mathieson & Staff Glass Pty Ltd (1999) 31 ACSR 53 at 54-55 and in Meehan v Alfaro and Another (1999) 93 FCR 201 at 202.…
Moran v Lydiard Financial Services Pty Ltd
[2007] FCA 872 Para 24

…Registrar’s orders: see Cottrell v Nicholls (as trustee in the estate of Cottrell) [2004] FCA 102 at [16] (per Allsop J) citing Meehan v Alfaro (1999) 93 FCR 201 at 212 and Martin v Commonwealth Bank of Australia (2001) 217 ALR 634 at [19].…
Moore v Wilson
[2006] FCA 79 Para 11

…to prove before the Registrar, including those specified in s 52(1) of the Act: see e.g. Martin v Commonwealth Bank of Australia (2001) 217 ALR 634; Meehan v Alfaro (1999) 93 FCR 201. The same approach applies under s 104 of the FM Act. There is no material difference in the two provisions. That approach has been adopte…
Cottrell v Nicholls (Trustee) in the matter of Cottrell (Bankrupt)
[2004] FCA 102 Para 16

…to purport to make a fresh sequestration order. The appropriate form of order would, with respect, have been to affirm the Registrar’s orders: see Meehan v Alfaro (1999) 93 FCR 201, 212; and Martin v Commonwealth Bank [2001] FCA 87 at [19]. That is consistent with the de novo review of the matter (in the sense of contro…
Cottrell v Wilcox
[2001] FCA 193 Para 11

…foot against Mr Wilcox himself, that would not have justified a dismissal of Mr Wilcox’s sequestration proceeding: see my reasons for judgment in Meehan v Alfaro (1999) 93 FCR 201 at 209-11, [40]-[47], referring to earlier authority on the point, including a decision of a Full Court of this Court. In those circumstances,…
Martin v Commonwealth Bank of Australia
[2001] FCA 87 Para 6

…lowed in New Era Installations Pty Ltd v Don Mathieson & Staff Glass Pty Ltd (1999) 31 ACSR 53 at 54-55, [2]-[4] (FCA: Katz J) and in Meehan v Alfaro (1999) 93 FCR 201 at 202, [2] (Katz J). (The last of those three cases involved a review by a Judge of the exercise by a Registrar of the Court’s power to make a seque…

View all 8 citing cases →

Cases cited in this decision · 9 of 9 shown

Stec v Orfanos
[1999] FCA 457 Para 31

…The debtor appealed from the judgment of von Doussa J: see Stec v Orfanos [1999] FCA 457 (Beaumont, Branson and Sundberg JJ; unreported; 15 April 1999). As to the point of present relevance, the Full Court said (at par 18) in its reasons for judgment, “The next claim is that the Notice was invalid because the all…
State Planning Commission v Della Vedova
[1997] FCA 720 Para 29

…(Sundberg J’s judgment was affirmed on appeal (reported at (1997) 80 FCR 330), although the debtor had not included in his appeal an attack in respect of that aspect of his Honour’s reasons for judgment which I have set out above.)…
Gardiner v Gardiner
[1992] FCA 964 Para 8

…d on non-compliance with that bankruptcy notice. However, I can see no reason why such a course cannot be taken. I note that in Gardiner v Gardiner (1992) 39 FCR 259, Northrop and Foster JJ held in joint reasons for judgment (see especially at 268 and 270) that a bankruptcy notice based upon a judgment or order whic…
Re Smith; Ex parte Chesson
[1992] FCA 59 Para 28

…te Skinner (1983) 72 FLR 393 at 407-408. To the same effect are Kayo Contractors v Fernandez (1984) 71 FLR 34, Re Smith; Ex parte Chesson (1992) 106 ALR 359 at 365-366 and Re Gibbs; Ex parte Triscott (1992) 133 ALR 718 at 724. The sole argument advanced by the applicant for the contention that the costs order was not…
Wilmot v Buckley
[1984] FCA 354 Para 32

…1 WLR 573, cf Kayo Contractors v Fernandez (1984) 27 NTR 21 at 27). Further, the present case may be distinguished from Wilmot v Buckley (1984) 2 FCR 540, where it was sought to base a bankruptcy notice upon a certificate of taxation for costs rather than the judgment ordering the costs.”…
Re Gould; Ex parte Skinner
[1983] FCA 71 Para 28

…r for costs was a ‘final order’. See also his Honour’s judgment in later proceedings between the same parties: Re Gould; Ex parte Skinner (1983) 72 FLR 393 at 407-408. To the same effect are Kayo Contractors v Fernandez (1984) 71 FLR 34, Re Smith; Ex parte Chesson (1992) 106 ALR 359 at 365-366 and Re Gibbs; Ex parte…
Opie v Opie
[1951] HCA 47 Para 4

…O’Leary J said (at 37-39), “The question here in issue is whether the judgment upon which the judgment creditor relies as the basis for the bankruptcy notice is ‘a final judgment or order’ within the meaning of s. 40(1)(g) of the Bankruptcy Act 1966 (Cth)…. The question … I think … turns simply on t…
King v Commercial Bank of Australia Ltd
[1921] HCA 3

…son and RD Nicholson JJ; unreported; 23 April 1998), followed In re King; Ex parte Commercial Bank of Australia Ltd [No 2] [1920] VLR 490, followed King v Commercial Bank of Australia Ltd (1921) 29 CLR 141, cited IN THE MATTER OF PEDRO ALFARO AND SYLVIA GLADYS ALFARO; JOHN MEEHAN v PEDRO ALFARO AND SILVIA GLADYS ALFARO NG 8337 OF 1998 KATZ J SY…
[1975] 1 WLR 573
[1975] 1 WLR 573 Para 32

…cation (1982) 45 ALR 553 at 555) a bankruptcy notice can be based upon an order for costs (see Re Cartwright; Ex parte Cartwright v Baker [1975] 1 WLR 573, cf Kayo Contractors v Fernandez (1984) 27 NTR 21 at 27). Further, the present case may be distinguished from Wilmot v Buckley (1984) 2 FCR 540, where it was sou…

Legislation cited in this decision · 6

Bankruptcy Act 1966 (Cth)
40(1)(g), 40(3)(b), 52(1), 52(2) 5 mentions (from Para 1)
Legal Profession Act 1987 (NSW)
208J, 208K 3 mentions (from Para 20)
Court Rules 1970 (NSW)
1 mention
Deserted Wives and Children Act 1901 (NSW)
1 mention (from Para 4)
Supreme Court Rules 1970 (NSW)
1 mention (from Para 19)
Workmen’s Compensation Act 1949 (NT)
1 mention (from Para 3)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8337 OF 1999

BETWEEN:	JOHN MEEHAN Applicant
AND:	PEDRO ALFARO First Respondent SILVIA GLADYS ALFARO Second Respondent
JUDGE:	KATZ J
DATE OF ORDER:	25 JUNE 1999
WHERE MADE:	SYDNEY

JUDGE:	KATZ J
DATE:	25 JUNE 1999
PLACE:	SYDNEY