Miller v Ghosh - [2016] FCCA 1191

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLER v GHOSH

[2016] FCCA 1191

Catchwords:
PRACTICE AND PROCEDURE – Application for adjournment of hearing of application for substitution of petitioning creditor – whether adequate explanation for delay has been given – whether there would be utility in granting adjournment – application for adjournment refused.

BANKRUPTCY – Application for substitution of petitioning creditor – whether debt owed to substituting creditor as at the date of act of bankruptcy – whether grounds for sequestration order established – order for substitution and sequestration order made.

Legislation:

Bankruptcy Act 1966 (Cth), s.40(1)(g), 47, 49, 52(1)
Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), r. 4.04, 4.04(1)(a), 4.04(1)(b), 4.05, 4.06(3), 4.06(4)

Applicant:

RODNEY MILLER

Respondent:

RATNA GHOSH

File Number:

SYG 235 of 2015

Judgment of:

Judge Manousaridis

Hearing date:

11 May 2016

Delivered at:

Sydney

Delivered on:

11 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr M. Maconachie

Solicitors for the Applicant:

Higgins & Dix

No appearance by or on behalf of the respondent.

ORDERS

The application made by Dr Ghosh to adjourn the hearing is dismissed.
Pursuant to s.49 of the Bankruptcy Act 1966 (Cth), Rodney Miller is substituted for Baycorp Collections PDL (Australia) Pty Limited as the petitioning creditor, and the petition may be proceeded with as if Rodney Miller has been the petitioning creditor.
Mr Miller has leave to file and rely on the creditor’s petition in the form of the amended creditor’s petition that was filed in Court on 11 May 2016.
The estate of Ratna Ghosh be sequestrated under the Bankruptcy Act 1966.
The applicant creditor’s costs be paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.
Scott Anthony Newton be appointed trustee of the estate of Ratna Ghosh.
The official trustee be notified of these orders within 2 business days.

THE COURT NOTES THAT:

The date of the act of bankruptcy is 18 November 2014.
A consent to act as trustee signed by Scott Anthony Newton has been filed under section 156A of the Bankruptcy Act 1966.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 235 of 2015

RODNEY MILLER

Applicant

And

RATNA GHOSH

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

On 19 April 2016 there came before me an interim application filed by Mr Rodney Miller for an order that he be substituted as creditor. On that day, the respondent, Dr Ghosh, applied for an adjournment over the opposition of counsel for Mr Miller. I did not hear the application for substitution. Instead, I ordered that:
The hearing of the interim application for substitution by Mr Miller as petitioning creditor and, if an order for substitution is made, the hearing of the amended creditor’s petition are set down for hearing at 10.15 am on 11 May 2016.
I also made orders that, by 3 May 2016, Dr Ghosh file and serve a notice of grounds of opposition to the interim application for substitution and, if an order for substitution is made, to 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 Miller v Ghosh

Details

AGLC: Miller v Ghosh [2016] FCCA 1191
Case: [2016] FCCA 1191
Decision Date: 11 May 2016

CaseChat Overview and Summary

In the matter of *Miller v Ghosh*, heard before Judge Manousaridis in the Federal Court of Australia, the applicant sought an adjournment of the hearing of an application for the substitution of a petitioning creditor. The respondent opposed this application.

The primary legal issues before the Court were whether an adequate explanation had been provided for the delay in bringing the application for substitution and whether there would be any utility in granting an adjournment. The Court was also required to determine whether the grounds for a sequestration order were established, specifically whether the debt owed to the substituting creditor existed at the time of the alleged act of bankruptcy.

Judge Manousaridis refused the application for adjournment, finding that no adequate explanation for the delay had been provided and that granting an adjournment would serve no practical utility. The Court proceeded to consider the application for substitution of the petitioning creditor and the application for a sequestration order. The Court found that the debt was owed to the substituting creditor as at the date of the act of bankruptcy and that the grounds for a sequestration order were established. Consequently, the Court made orders for the substitution of the petitioning creditor and a sequestration order.

Orders