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Neale v Mahony

Neale v Mahony

Case [2018] FCCA 363 20 March 2018

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FEDERAL CIRCUIT COURT OF AUSTRALIA

NEALE v MAHONY

[2018] FCCA 363

Catchwords:
BANKRUPTCY – Application to set aside a bankruptcy notice – whether the requirements of s.40(1)(g) of the Bankruptcy Act 1966 (Cth) are met – whether the Court should go behind the judgment of the New South Wales Local Court.

PRACTICE AND PROCEDURE – Application in a Case to amend substantive application – application refused.

Legislation:

Bankruptcy Act 1966 (Cth), ss.30, 40, 52

Cases cited:

James Woodward Neale v Bank of Western Australia Ltd; Bank of Western Australia Ltd v James Woodward Neale [2014] NSWSC 315

Ramsay Health Care Australia Pty Ltd v Compton [2016] FCA 1207
Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106; (2016) 246 FCR 508
Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; (2017) 91 ALJR 803
Re Thompson; Ex parte Thompson v Grimley Pty Ltd and Others [1995] FCA 1148; (1995) 61 FCR 544; (1995) 135 ALR 700
Glew v Harrowell, in the matter of Glew [2003] FCA 373; (2003) 198 ALR 331
Re Brink; Ex parte Commercial Banking Company of Sydney Ltd [1980] FCA 78; (1980) 44 FLR 135
Ebert v The Union Trustee Co of Australia Ltd [1960] HCA 50; (1960) 104 CLR 346
Capsanis, in the matter of Capsanis v The Owners – Strata Plan 11727 [2000] FCA 1262
Tzovaras v Nufeno Pty Ltd [2003] FCA 1152
Re Vicini; Ex Parte E.A Sealy & Co (1982) 64 FLR 323

Applicant:

JAMES WOODWARD NEALE

Respondent:

JOHN FRANCIS MAHONY

File Number:

SYG 847 of 2017

Judgment of:

Judge Nicholls

Hearing date:

7 August 2017

Date of Last Submission:

7 August 2017

Delivered at:

Sydney

Delivered on:

20 March 2018

REPRESENTATION

Solicitors for the Applicant:

Mr T Hall of Hall Partners appeared at the hearing

Counsel for the Respondent:

Mr A Maroya

Solicitors for the Respondent:

Mahony Law

ORDERS

The Applications in a Case made on 12 May 2017 and 16 June 2017 for leave to amend the substantive application and for the filing of a Statement of Claim are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 847 of 2017

JAMES WOODWARD NEALE

Applicant

And

JOHN FRANCIS MAHONY

Respondent

REASONS FOR JUDGMENT

This is an Application in a Case (“AIC”) filed by Mr Neale in these proceedings on 16 June 2017, seeking that he be permitted to file an amended application and a Statement of Claim (“SOC”).
The respondent objects to the AIC.

Material before the Court

The material filed on behalf of Mr Neale that is currently before the Court is as follows:
a)The affidavit of James Woodward Neale, Retired Property Developer, made on 9 June 2017.
b)The affidavit of Andrea Lee, Solicitor, made on 14 June 2017.
c)The affidavit of Marcel Dagher, Director, made on 12 June 2017.
d)The affidavit of Yves El Khoury, [no occupation stated], made on 7 June 2017.
The material filed on behalf of Mr Mahony that is currently before the Court is as follows:

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 Neale v Mahony

Details

AGLC: Neale v Mahony [2018] FCCA 363
Case: [2018] FCCA 363
Decision Date: 20 March 2018

CaseChat Overview and Summary

Neale (the applicant) sought to set aside a bankruptcy notice issued by Mahony (the respondent) based on a judgment of the New South Wales Local Court. The applicant contended that the requirements of section 40(1)(g) of the *Bankruptcy Act 1966* (Cth) were not met, and that the Court should go behind the judgment of the Local Court.

The primary legal issue before the Court was whether the applicant had established a counter-claim, set-off or cross-demand that equalled or exceeded the amount of the judgment debt, thereby preventing the bankruptcy notice from being valid. A secondary issue concerned an application by the applicant to amend their substantive application.

Judge Nicholls found that the applicant had failed to demonstrate a sufficient counter-claim, set-off or cross-demand that would justify setting aside the bankruptcy notice. The Court held that it should not go behind the judgment of the Local Court in the absence of compelling evidence of a substantial dispute or a clear injustice. The application to amend the substantive application was also refused.

Orders