Morrow v Goldberg - [2004] FMCA 605

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MORROW v GOLDBERG

[2004] FMCA 605

BANKRUPTCY – Creditors Petition – whether any basis to refuse to make sequestration order – judgment debt arising from costs order – allegation of fraud.

Goldberg v Morrow [2004] FMCA 531

Applicant:

DAVID MORROW

Respondent:

DAVID GOLDBERG

File No:

MLG 866 of 2004

Delivered on:

6 September 2004

Delivered at:

Melbourne

Hearing Date:

6 September 2004

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr K Baker

Solicitors for the Applicant:

Victorian Government Solicitor

Respondent:

In person

ORDERS

A sequestration order be made against the estate of David Goldberg.
The Applicant Creditor’s costs, including reserved costs, be taxed in accordance with Order 62 of the Federal Court Rules and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.

The Court notes that the date of the act of bankruptcy is 1 April 2004.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 866 of 2004

DAVID MORROW

Applicant

and

DAVID GOLDBERG

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Before the court today is a creditor's petition by David Morrow (the applicant creditor) seeking a sequestration order against David Goldberg (the respondent debtor). The petition asserts that the respondent debtor owes the applicant creditor an amount of $3468.85 for taxed legal costs for which sum an order was obtained in the Supreme Court of Victoria at Melbourne on 14 November 2003 arising from an order of the Honourable Gillard J made on 24 July 2003.
The petitioning creditor relies upon a bankruptcy notice which attached a general form of order from the Supreme Court to which reference has been made. It is of some significance to note that in terms of bankruptcy proceedings the dispute between these parties was previously subject to an application to set aside the bankruptcy notice. Those proceedings were heard and determined by the court in the matter of Goldberg v Morrow [2004] FMCA 531. In a decision of His Honour Phipps FM on 17 June 2004 the court dismissed the application to set aside the bankruptcy notice and otherwise ordered the applicant debtor to pay the respondent creditor's costs of the application.
Some of the history of this matter is set out in his Honour's decision and in the reasons for judgment in that matter which I do not propose to repeat in detail before the court this day.
In support of the creditor's petition the creditor has relied upon the usual affidavits and in court today was granted leave to further rely upon affidavits of debt and of search, those affidavits both sworn respectively 6 September 2004 and when taken together with the other affidavit material on file, satisfactorily comply with the requirements of the Bankruptcy Act and in particular I am satisfied comply with s.52 of the Act. It is clear to me on a proper reading of the affidavit material that there are no technical deficiencies in the material and that the applicant creditor…

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 Morrow v Goldberg

Details

AGLC: Morrow v Goldberg [2004] FMCA 605
Case: [2004] FMCA 605
Decision Date: 6 September 2004

CaseChat Overview and Summary

In the case of Morrow v Goldberg, the applicant, Morrow, sought a sequestration order against the estate of the respondent, Goldberg. The dispute arose from an outstanding debt that Goldberg owed to Morrow. The matter was heard in the Federal Court of Australia.

The legal issues before the court included whether the debt was indeed outstanding and owed by Goldberg to Morrow, and if the act of bankruptcy had occurred. An act of bankruptcy under the Bankruptcy Act 1966 includes the failure to pay a judgement debt. The court was required to determine whether Goldberg's failure to pay constituted such an act.

The court found that the debt was undisputed and remained unpaid. It accepted that Goldberg had not taken any steps to discharge the debt. The court also found that the act of bankruptcy had occurred on the date specified by Morrow, which was 1 April 2004. Given these findings, the court ruled that a sequestration order should be made against Goldberg's estate. Furthermore, the court ordered that Morrow's costs, including reserved costs, be paid from Goldberg's estate in accordance with the Bankruptcy Act 1966 and the Federal Court Rules.

Orders

Orders of the court

A sequestration order be made against the estate of David Goldberg.

The Applicant Creditor’s costs, including reserved costs, be taxed in accordance with Order 62 of the Federal Court Rules and paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966.

The Court notes that the date of the act of bankruptcy is 1 April 2004.

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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