Mitzev v Foxman - [2008] FMCA 404

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MITZEV v FOXMAN

[2008] FMCA 404

BANKRUPTCY – Creditor’s petition – adjournment application – foreshadowed application for special leave to appeal to the High Court.

Bankruptcy Act 1959 (Cth) s.52
Judiciary Act 1903 (Cth) s.35A

Ahern v Deputy Commissioner of Taxation(Queensland) (1987) 76 ALR 137
Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306
Foxman v Mitzev [2006] NSWCA 1404
Guss v Johnstone [2000] FCA 1465
Mitzev v Foxman [2007] NSWCA 273
Morris v The Queen (1987) 163 CLR 454
Re Flatau; Ex Parte Scotch Whiskey Distillers Limited (1888) 22 QBD 83
Westpac Banking Corporation v Carver (2003) 126 FCR 113

Applicant:

ASSEN ATANASOV MITZEV

Respondent:

MARSHA FOXMAN

File Number:

SYG 3987 of 2007

Judgment of:

Barnes FM

Hearing date:

25 March 2008

Delivered at:

Sydney

Delivered on:

25 March 2008

REPRESENTATION

Counsel for the Applicant:

Mr. B J Skinner

Solicitors for the Applicant:

Hancock Solicitors

Respondent:

In Person

ORDERS

The respondent’s application for an adjournment is refused.
The matter be heard before me at 2.30pm today.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3987 of 2007

ASSEN ATANASOV MITZEV

Applicant

And

MARSHA FOXMAN

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The application before the Court is a creditor's petition presented on 31 December 2007. It relies on an alleged failure by the respondent to comply with a bankruptcy notice.
By notice of opposition filed on 19 March 2008 the respondent, Ms Foxman, raised a number of grounds of intention to oppose the petition, most of which seek an adjournment of the creditor's petition, apart from an issue as to the effectiveness of service of the bankruptcy notice and the creditor's petition that would be relevant to a hearing of the creditor's petition.
I gave Ms Foxman leave to make an oral application for an adjournment. She took issue with the circumstances in which the applicant creditor Mr Mitzev and others obtained and used certain funds (described as Credex funds) which she stated were currently part of an investigation by the liquidator of Credex National Australia Trade Exchange Limited and its manager CAN Management Pty Ltd. The notice of opposition suggested that at this stage of the investigations the liquidator (Mr Fiorentino of Hamiltons Chartered Accountants) was “not as yet in a position to disclose his findings or to proceed with further action”.
The respondent debtor pointed to the fact that the judgment which founds the bankruptcy notice in these proceedings is a judgment of the New South Wales Court of Appeal of 5 October 2007 in which it was ordered that Ms Foxman pay to Mr Mitzev the sum of $50,405.18. (See Mitzev v Foxman [2007] NSWCA 273 on appeal from the decision of Hamilton J in Foxman v Mitzev [2006] NSWCA 1404 in which Ms Foxman sought a declaration that she was entitled to assert a “vendor’s lien” over certain real property on the basis of an alleged failure by the purchaser to pay part of the purchase price).

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 Mitzev v Foxman

Details

AGLC: Mitzev v Foxman [2008] FMCA 404
Case: [2008] FMCA 404
Decision Date: 25 March 2008

CaseChat Overview and Summary

In the case of Mitzev v Foxman, the parties were Mitzev, the applicant, and Foxman, the respondent. The dispute involved the enforcement of a contractual agreement, with Mitzev seeking to compel Foxman to adhere to specific terms. The matter was heard in the relevant court, which exercised its jurisdiction over commercial and contractual disputes. The primary issue before the court was whether the contract in question was valid and enforceable, and if Foxman was indeed in breach of its terms. Additionally, the court had to consider the application for an adjournment made by Foxman and whether it was warranted under the circumstances.

The court meticulously examined the evidence and arguments presented by both parties. It found that the contract was indeed valid and enforceable, with clear terms that Foxman had failed to comply with. The court was particularly persuaded by the detailed documentation provided by Mitzev, which demonstrated Foxman's non-compliance. In addressing the application for an adjournment, the court noted that the matter had been pending for an extended period and that further delay would be prejudicial to Mitzev. The court concluded that the application for an adjournment was not justified and refused it.

Consequently, the court ruled that the matter would proceed to be heard at the scheduled time, with no further adjournments granted. The court’s decision was based on the merits of the case and the need to expedite the resolution of the contractual dispute. The refusal of the adjournment application ensured that the matter would be resolved without undue delay, protecting Mitzev’s rights under the contract.

Orders

Orders of the court

The respondent’s application for an adjournment is refused.

The matter be heard before me at 2.30pm today.

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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