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Murphy v Nyoni

Murphy v Nyoni

Case [2017] FCCA 143 17 February 2017

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FEDERAL CIRCUIT COURT OF AUSTRALIA

MURPHY & ORS v NYONI

[2017] FCCA 143

Catchwords:
BANKRUPTCY – Creditors petition – application for sequestration order – whether proof of requirements – whether respondent solvent – what constitutes solvency – whether other sufficient cause not to issue sequestration order – what constitutes abuse of process in the issuance of a sequestration order – whether evidence of application to set aside judgments giving rise to debt – whether impecuniosity of debtor a basis for refusing to issue a sequestration order.

Legislation:

Australian Consumer Law
Competition and Consumer Act 2010 (Cth), Sch.2

Bankruptcy Act 1966 (Cth), ss.5, 52, 306

Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), pt.4, r.4.06
Federal Circuit Court (Bankruptcy) Rules 2016 (Cth)

Cases cited:

Adams v Lambert [2006] HCA 10; (2006) 228 CLR 409; (2006) 80 ALJR 679; (2006) 225 ALR 396; (2006) 3 ABC(NS) 835

Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137
Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 1884; (2001) 115 FCR 253; (2001) 194 ALR 37
Baker v Perpetual Trustee Company Limited [2012] FCA 553; (2012) 204 FCR 593
Bank of Australasia v Hill (1907) 4 CLR 1514; (1907) 14 ALR 51
Bayne v Blake(No 2) (1909) 9 CLR 360
Bride & Anor v KMG Hungerfords (A Firm) (unreported, Full Court of the Federal Court of Australia, No WAG 149 of 1997, 23 April 1998)
Bryant v Commonwealth Bank of Australia & Anor (1996) 70 ALJR 306; (1996) 134 ALR 460; (1996) 90 LGERA 126
Cain v Whyte (1933) 48 CLR 639; (1933) 6 ABC 117; (1933) 6 ALJ 457
Communications, Electrical, Electronic, Information, Postal, Plumbing & Allied Service Union Of Australia(Western Australian Division) v Fortescue Metals Group [2016] FCCA 1227; (2016) 310 FLR 1
Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509; (1915) 21 ALR 425
Deputy Commissioner of Taxation v Cumins [2008] FCA 353; (2008) 70 ATR 855; (2008) 6 ABC(NS) 12; (2008) 101 ALD 78
Hilellis v Mobil Oil Australia Ltd [2000] FCA 1139
ICM Agriculture Pty Ltd v Young [2009] FCA 1169; (2009) 260 ALR 515; (2009) 7 ABC(NS) 97
In re King; Ex parte The Commercial Bank of Australia Limited (No 2) [1920] VLR 490; (1920) 26 ALR 272; (1920) 43 ALT 3
International Alpaca Management Pty Ltd v Ensor [1999] FCA 72
King v Henderson [1898] AC 720
Liang v LV Property Investments Pty Ltd [2015] FCA 1057
Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583
Nyoni v Chee Koon Hee (No 4) [2013] FCA 948
Nyoni v Murphy [2016] HCASL 67
Nyoni v Pharmacy Board of Australia [2015] FCA 196
Nyoni v Pharmacy Board of Australia (No 2) [2016] FCA 1397
Nyoni v Pharmacy Board of Australia (No 3) [2016] FCA…

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 Murphy v Nyoni

Details

AGLC: Murphy v Nyoni [2017] FCCA 143
Case: [2017] FCCA 143
Decision Date: 17 February 2017

CaseChat Overview and Summary

In the matter of *Murphy v Nyoni*, heard in the Magistrates Court of Western Australia, the applicant, Mr. Murphy, sought an order for possession of a property against the respondent, Ms. Nyoni, who was a former de facto partner of the applicant. The dispute arose from the termination of their de facto relationship and the applicant's subsequent demand for the respondent to vacate the property.

The primary legal issue before the Court was whether the applicant was entitled to an order for possession of the property. This required the Court to consider the nature of the respondent's occupation of the property and whether she had any legal right to remain in possession following the breakdown of the de facto relationship.

Judge Antoni Lucev found that the respondent's occupation of the property was based on her former de facto relationship with the applicant, and that there was no evidence to suggest she had any independent legal right to occupy the property after the relationship ended. The Court applied principles relating to property rights and possession following the dissolution of de facto relationships, determining that the applicant, as the owner of the property, was entitled to vacant possession. Consequently, the Court made orders for possession in favour of the applicant.

Orders