Miller v Williams - [2014] FCCA 353

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLER v WILLIAMS

[2014] FCCA 353

Catchwords:

BANKRUPTCY – Bankruptcy notice – review of decision – alleged counter-claim, set-off or cross-demand – application dismissed – costs awarded.

Legislation:

Bankruptcy Act 1966 (Cth) ss.40, 104
Federal Circuit Court of Australia Act 1999 (Cth)
Uniform Civil Procedure Rules 1999 (Qld)
Kerr & Hunter on Receivers and Administrators 19th ed
Civil Proceedings Act 2011 s.69B

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Angel's Castle Pre-School Pty Ltd (in liq) (No 2) [2012] FCA 57
Massih v Esber [2008] FCA 1452

AGL Sales (QLD) Pty Ltd v Dawson Sales Pty Ltd [2009] QCA 262

Applicant:

RAYMOND CHARLES MILLER

Respondent:

JULIE ANN WILLIAMS

File Number:

BRG 957 of 2013

Judgment of:

Judge Burnett

Hearing date:

5 February 2014

Date of Last Submission:

5 February 2014

Delivered at:

Brisbane

Delivered on:

5 February 2014

REPRESENTATION

The applicant appeared on his own behalf.

Solicitors for the Respondent:

Minter Ellison Lawyers

ORDERS

That the application for review filed on 9 December 2013 be dismissed.
That the Applicant pay the Respondent’s costs of and incidental to the application to be assessed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 957 of 2013

RAYMOND CHARLES MILLER

Applicant

And

JULIE ANN WILLIAMS

Respondent

REASONS FOR JUDGMENT

(Ex tempore)

This application today seeks review of an order made by Registrar Belcher on 21 November 2013 ordering:
a)That the application to set aside Bankruptcy Notice BN165585 of 2013 issued on 27 September 2013 be dismissed.
b)That the applicant pay the respondent’s costs of and incidental to that application to be taxed if not agreed.
The jurisdiction of the Court to entertain this application is provided for in s.104 Federal Circuit Court of Australia Act 1999 (Cth).The review is conducted by way of rehearing. The original application brought by the applicant on 23 October 2013 to set aside the bankruptcy notice was in respect of a bankruptcy notice which issued on 27 September 2013 in support of a judgment entered against the applicant by a Deputy Registrar of the Supreme Court of Queensland on 13 September 2013. The Deputy Registrar’s order was in response to a costs order made by Dalton J on 26 April 2013, wherein her Honour ordered that the applicant pay the respondent’s costs of a proceeding then before her to be assessed on the indemnity basis.
Following that order a process of assessment was undertaken leading to the order of the Deputy Registrar on 13 September 1013.The Deputy Registrar determined, in accordance with the certificate of the costs assessor filed 9 September 2013 assessing costs at $15,057.10, that there be an order that the applicant pay those costs. That order, as I have noted, supported the bankruptcy notice which in due course issued and was served upon the applicant.
The applicant contests the notice and seeks that it be dismissed. He contends that there are two grounds for its dismissal. The first is that he is appealing the original order…

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 Williams

Details

AGLC: Miller v Williams [2014] FCCA 353
Case: [2014] FCCA 353
Decision Date: 5 February 2014

CaseChat Overview and Summary

In *Miller v Williams*, the Federal Circuit Court of Australia considered an application to set aside a bankruptcy notice. The applicant, Mr Miller, sought to have the notice annulled on the basis that he had a counter-claim, set-off, or cross-demand against the respondent, Ms Williams, which equalled or exceeded the amount of the debt for which the notice was issued.

The central legal issue before the Court was whether Mr Miller had established the existence of a counter-claim, set-off, or cross-demand that was of sufficient magnitude to justify setting aside the bankruptcy notice. This required the Court to assess the evidence presented by Mr Miller regarding his alleged entitlements against Ms Williams.

Judge Burnett found that Mr Miller had failed to demonstrate a genuine and substantial counter-claim, set-off, or cross-demand. The Court applied the principles established in bankruptcy law concerning the requirements for setting aside a bankruptcy notice, which necessitate a clear and demonstrable claim that is likely to succeed. Having determined that the threshold was not met, the Court dismissed the application.

Orders