Miller v LOYAL No. 46 - [2001] FMCA 81

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MILLER v LOYAL No. 46

[2001] FMCA 81

BANKRUPTCY – Application to stay sequestration pending appeal – Whether prospects of success – Stay granted with security for Respondent’s costs – s.52(iii) Bankruptcy Act 1966.

Applicant:

JENNIFER DOREEN MILLER

Respondent:

LOYAL No. 46

File No:

BZ 203 of 2000

Delivered on:

31 July 2001

Delivered at:

Brisbane

Hearing Date:

31 July 2001

Judgment of:

Baumann FM

REPRESENTATION

The Applicant in person.

Counsel for the Respondent:

Mr Kidston

ORDERS

That proceedings under the sequestration order made 23 May 2001 be stayed up to and including 24 August 2001.
If on or before 24 August 2001 security for the respondent's costs of the appeal in the sum of $2500, in a form satisfactory to the Registrar is provided by Ms Miller, then the stay referred to in order (1) above shall be extended up to the determination of the appeal provided that such appeal is prosecuted diligently and expeditiously.
The stay under order (1) shall lapse, if security as referred to in order (2) above is not provided on or before 24 August 2001.
The bankrupt shall pay the costs of today, fixed at $250 by 24 August 2001

ALIA AT

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BZ 203 of 2001

JENNIFER DOREEN MILLER

Applicant

And

LOYAL NO 46
Respondent

REASONS FOR JUDGMENT

I have an application before me today made by the applicant, Jennifer Doreen Miller on 23 July 2001 seeking an order, that a sequestration order made by me on 23 May 2001 be stayed pending the hearing of an appeal against my judgement.
Ms Miller has provided me today with details of the appeal filed on

20 May 2001. The basis of that appeal appears to rely on the following facts or issues and some of those grounds have been further explained to me today in the handwritten submissions provided by Ms Miller, namely:
a)That even though in my reasons at paragraph 13:
“I indicated that the Debtor I had not asked that I look behind the judgment.”
Ms Miller says that:
“She did not ask me to do so” –
because she alleges that I had told her on 30 March that I would look behind the judgment.
b)She says that she has now made an application to the Cairns Magistrates Court to have the judgement upon which the original Bankruptcy Notice was founded set aside, and that she expects such application to be heard on or about 23 August.
c)She claims still to be solvent. In her written submission she expresses that view in this way, namely:
“I have a good credit rating and I do not wish my name spoken in the fashion that I cannot pay my debts when they fall due.”
Mr Kidston, who represented the petitioning creditor and the respondent to this application made oral submissions, the effect of which is that the appeal brought by Ms Miller is doomed to fail and that there is no basis…

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 LOYAL No. 46

Details

AGLC: Miller v LOYAL No. 46 [2001] FMCA 81
Case: [2001] FMCA 81
Decision Date: 31 July 2001

CaseChat Overview and Summary

In the matter of Miller v LOYAL No. 46, the court was presented with an application by the appellant, Ms. Miller, to stay the proceedings under a sequestration order made on 23 May 2001. This order, issued by the court, declared the appellant bankrupt and appointed a trustee. The respondent, LOYAL No. 46, opposed the stay but did not contest the provision of security for costs. The appeal was heard by the court, which had to determine the appropriate conditions under which the stay of the sequestration order should be maintained.

The primary legal issue before the court was whether the appellant's application for a stay of the sequestration proceedings should be granted and, if so, under what conditions. This involved assessing the merits of the appellant's appeal, the likelihood of success, and the potential impact on the respondent. The court also had to consider the necessity of providing security for costs as a condition for the extension of the stay.

The court found that the appellant's application for a stay should be granted to allow time for the appeal to be prosecuted. The court determined that the stay would be effective up to and including 24 August 2001. However, if Ms. Miller provided security for the respondent's costs of the appeal by this date, the stay would be extended until the appeal was determined, provided the appeal was prosecuted diligently and expeditiously. The court emphasised that if the security was not provided by the specified date, the stay would lapse. Additionally, the court ordered that the bankrupt would bear the costs of the proceedings, fixed at $250, by 24 August 2001.

The final orders issued by the court provided that the sequestration proceedings would be stayed up to and including 24 August 2001. If Ms. Miller provided the necessary security for costs by this date, the stay would be extended until the appeal was determined, contingent on the appeal being prosecuted in a timely manner. Should the security not be provided, the stay would cease. The court also ordered that the bankrupt would pay the costs of the proceedings by 24 August 2001.

Orders

Orders of the court

That proceedings under the sequestration order made 23 May 2001 be stayed up to and including 24 August 2001.

If on or before 24 August 2001 security for the respondent's costs of the appeal in the sum of $2500, in a form satisfactory to the Registrar is provided by Ms Miller, then the stay referred to in order (1) above shall be extended up to the determination of the appeal provided that such appeal is prosecuted diligently and expeditiously.

The stay under order (1) shall lapse, if security as referred to in order (2) above is not provided on or before 24 August 2001.

The bankrupt shall pay the costs of today, fixed at $250 by 24 August 2001

ALIA AT

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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