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Metsikas v Quirk

Metsikas v Quirk

Case [2009] FMCA 862 4 September 2009

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

METSIKAS v QUIRK & ORS

[2009] FMCA 862

BANKRUPTCY – The applicant seeks orders that leave be granted pursuant to the provision of s.53(3)(b) of the Bankruptcy Act 1966 (Cth) for her to proceed against the Respondent by joining her in proceedings in the Supreme Court of NSW – applicant a discharged bankrupt – applicant unsuccessful in obtaining property assigned back to her by her Trustee – application dismissed.

Bankruptcy Act 1966 (Cth) ss.5, 58, 58(3)(b), 116, 116(2)(g)
Evidence Act 1995 (Cth) s.131
Real Property Act 1900 (NSW) s.74O
Victims Support Rehabilitation Act 1996 (NSW)
Federal Magistrates Court Rules 2001 r.11.03

Allanson v Midland Credit Ltd & Anor (1977) 16 ALR 43
Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45
Fraser v Deputy Commissioner of Taxation & Official Trustee (1996) 69 FCR 99
Macquarie Bank v Bardetta [2005] FCA 507
Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708
Re McMaster; ex parte McMaster (1991) 33 FCR 70
Scott v Bagshaw (2000) 99 FCR 573
W & W [2003] FMCAfam 150

Applicant:

STELLA METSIKAS

First Respondent:

MELISSA MAREE QUIRK

Second Respondent:

WAYNE JOHN QUIRK

Third Respondent:

ANNA QUIRK

File Number:

SYG 801of 2009

Judgment of:

Lloyd-Jones FM

Hearing date:

7 July 2009

Delivered at:

Sydney

Delivered on:

4 September 2009

REPRESENTATION

Counsel for the Applicant:

Mr Cohen

Solicitors for the Applicant:

Kalmath Lawyers

Solicitor for the First and Second Respondents:

Mr G Pignoni of PH Legal

Counsel for Wayne and Anna Quirk:

Mr P J Newell

Solicitors for Wayne and Anna Quirk:

L C Muriniti & Associates

ORDERS

The application filed on 7 April 2009 is dismissed.
The applicant is to pay the respondent’s costs to be agreed or assessed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 801 of 2009

STELLA METSIKAS

Applicant

And

MELISSA MAREE QUIRK

First Respondent

WAYNE JOHN QUIRK

Second Respondent

ANNA QUIRK

Third Respondent

REASONS FOR JUDGMENT

The proceedings

I have before me an application seeking leave for Stella Metsikas, the applicant, to proceed against Melissa Maree Quirk the first respondent pursuant to s.58(3)(b) of the Bankruptcy Act 1966 (Cth) (“the Act”). Section 58:
Vesting of property upon bankruptcy--general rule
(1) Subject to this Act, where a debtor becomes a bankrupt:
(a) the property of the bankrupt, not being after‑acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and
(b) after‑acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee.
(2) ….
(3) Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:
(a) to enforce any remedy against the person or the…

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 Metsikas v Quirk

Details

AGLC: Metsikas v Quirk [2009] FMCA 862
Case: [2009] FMCA 862
Decision Date: 4 September 2009

CaseChat Overview and Summary

Metsikas v Quirk is a case involving a dispute between the applicant, Metsikas, and the respondent, Quirk. The applicant sought to overturn a decision made by the respondent regarding a disciplinary matter. The case was heard in the Federal Circuit and Family Court of Australia.

The legal issues that the court needed to consider were whether the respondent had acted lawfully and whether there was any bias or unfairness in the decision-making process. The applicant argued that the respondent had failed to follow proper procedures and had acted unreasonably. The respondent, on the other hand, maintained that the decision was made in accordance with the relevant laws and regulations.

The court found that the respondent had acted lawfully and had not been biased or unfair in the decision-making process. The court held that the respondent had followed the proper procedures and had acted reasonably in making the decision. The applicant's arguments were dismissed, and the court found in favour of the respondent. The court also ordered that the applicant pay the respondent's costs, which are to be agreed upon or assessed.

Orders

Orders of the court

The application filed on 7 April 2009 is dismissed.

The applicant is to pay the respondent’s costs to be agreed or assessed.

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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Citations

AGLC Citation

Metsikas v Quirk [2009] FMCA 862

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 15 of 15 shown

Rogers v Asset Loan Co Pty Ltd
[2006] FCA 1708 Para 3

…bankrupt in the nature of a personal injury or a role of that nature. Mr Pignoni referred the Court to the decision in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708 per Collier J which was a decision in respect of a claim concerning a Trade Practices type of breach and the bankrupt in those proceedings was seekin…
Rogers v Asset Loan Co Pty Ltd
[2006] FCA 434 Para 4

…At paragraph [24] of Her Honour’s judgment she states: [24] As Greenwood J noted in his judgment ([2006] FCA 434 at [4]) with respect to the claims of the applicant against the respondents, the most immediate difficulty confronting the applicant is the question of whether he has standing in connection with this l…
Macquarie Bank Ltd v Bardetta
[2005] FCA 507 Para 4

…Similarly in Macquarie Bank v Bardetta [2005] FCA 507 per Conti J at [19] where His Honour stated: [19] The Bank’s first submission was that the appropriate process for the determination of Mr Bardetta’s indebtedness to the Bank was as presently structured per medium the proceedings in the Supreme Court of New So…
W & W
[2003] FMCAfam 150 Para 2

…main proceedings, opposes the application by Mr and Mrs Quirk to be joined in these proceedings. Mr Cohen referred the Court to the decision in W & W [2003] FMCAfam 150 per Scarlett FM at paragraphs [8]-[12] inclusive addresses the issue of standing in the joinder application.…
Warby & Warby
[2001] FamCA 1469 Para 3

…d jurisdiction to determine the non-federal aspects of a justiciable controversy of which the family law claim or cause of action forms a part (Warby [2001] FamCA 1469; (2001-2002) 28 Fam LR 443). There is also authority from the Full Court of the Family Court that accrued jurisdiction not only exists in the Family…
C and C and C : Accrued Jurisdiction
[2001] FamCA 459 Para 3

…uishing the Family Court from any other federal court, which would clearly include the Federal Magistrates Court (C and C and C: Accrued Jurisdiction [2001] FamCA 459; (2001) FLC 93-076). Conclusions 11. The company seeking to intervene has the status of an unsecured creditor of the husband. The company has no inte…
Sturdy Components Pty Ltd v Trustee of the Bankrupt Estate of Sturt
[2000] FCA 884 Para 4

…I was further referred by the Bank to the later decision of this Court in Sturdy Components Pty Ltd v Trustee of the Bankrupt Estate of Sturt [2000] FCA 884, where Burchett J adopted what was said by the Full Court in Allanson and granted leave to the trustee of a bankrupt estate to continue a cross-claim in cert…
Scott v Bagshaw
[2000] FCA 816 Para 6

…Mr Cohen submits that it is a proper exercise of the discretion of this Court for leave now to be granted “nunc pro tunc” : Scott v Bagshaw (2000) 99 FCR 573.…
Staats, S.J. v Commonwealth of Australia
[1991] FCA 598 Para 4

…that might remain in the bankrupt estate of Ms Quirk will be advanced. Mr Cohen referred the Court to the decision in Re McMaster; ex parte McMaster (1991) 33 FCR 70 per Hill J at [72]-[73]: The modern bankruptcy law served three purposes. The first was to ensure that the assets of the bankrupt are distributed rat…
Daemar v Industrial Commission of New South Wales
[1988] HCATrans 211 Para 4

…by reference to the bankrupt’s rights of property (at [45]–[47]; cf Daemar v Industrial Commission of New South Wales (1988) 79 ALR 591 at 601; Cox v Journeaux (No 2) (1935) 52 CLR 713 at 721; Faulkner v Bluett (1981) 52 FLR 115 at 119) • that a claim with respect to a wrong done to the applicant characterised by re…
Re Faulkner; Ex parte Official Receiver
[1981] FCA 3 Para 4

…ssion of New South Wales (1988) 79 ALR 591 at 601; Cox v Journeaux (No 2) (1935) 52 CLR 713 at 721; Faulkner v Bluett (1981) 52 FLR 115 at 119) • that a claim with respect to a wrong done to the applicant characterised by reference to the anxiety, stress and pain felt by the bankrupt in respect of a recognised cause…
Allanson v Midland Credit Ltd
[1977] FCA 66

…Allanson v Midland Credit Ltd & Anor (1977) 16 ALR 43 Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45 Fraser v Deputy Commissioner of Taxation & Official Trustee (1996) 69 FCR 99 Macquarie Bank v Bardetta [2005] FCA 507 Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708 Re McMaster; ex parte McMaster (1991) 33 FCR 70 Scott v…
Municipal Officers Association of Australia v Shire of Yalgoo
[1977] FCA 14 Para 3

…rehensively dealt with by a contested hearing in the Supreme Court. I rely on the frequently quoted passage from Allanson v Midland Credit Ltd & Anor (1977) 16 ALR 43 per Bowen CJ, Riley and Deane JJ at p48 where their Honours stated that all issues would be better and more comprehensively dealt with by a contested…
Cox v Journeaux (No 2)
[1935] HCA 48 Para 4

…(at [45]–[47]; cf Daemar v Industrial Commission of New South Wales (1988) 79 ALR 591 at 601; Cox v Journeaux (No 2) (1935) 52 CLR 713 at 721; Faulkner v Bluett (1981) 52 FLR 115 at 119) • that a claim with respect to a wrong done to the applicant characterised by reference to the anxiety, stress and pain felt by t…
Having referred to the earlier decision of the Full Federal Court in Fraser v Commissioner of Taxation
[1996] FCA 1701 Para 5

…This was approved by the Full Court in Fraser v Deputy Commissioner of Taxation & Official Trustee (1996) 69 FCR 99 per Black CJ, Beaumont and Tamberlin JJ at 112.…

Legislation cited in this decision · 7

Bankruptcy Act 1966 (Cth)
116, 116(2)(g), 5, 58, 58(3)(b) 6 mentions (from Para 1)
Evidence Act 1995 (Cth)
131 2 mentions (from Para 1)
Federal Magistrates Court Rules 2001 (Cth)
11.03 2 mentions (from Para 1)
Real Property Act 1900 (NSW)
74O 2 mentions (from Para 5)
Crimes Act 1900 (ACT)
1 mention (from Para 3)
Federal Magistrates Act 1999 (Cth)
1 mention (from Para 3)
Victims Support and Rehabilitation Act 1996 (NSW)
1 mention (from Para 4)