Neil v Reward Property Group Pty Ltd - [2008] FMCA 1583

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NEIL v REWARD PROPERTY GROUP PTY LTD

[2008] FMCA 1583

BANKRUPTCY – Application to set aside bankruptcy notice.

PRACTICE AND PROCEDURE – Venue – application to change – mandatory matters for consideration – other relevant matters for consideration.

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(1)(a)(ii), 121
Corporations Act 2001 (Cth), s.459G
Federal Magistrates Act 1999 (Cth), ss.18, 39, 45, 52
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), r.3.02
Federal Magistrates Court Rules 2001 (Cth), rr.8.01, 8.02,14.02

Abrahams v Qantas Airways Limited (No. 2) (2007) 210 FLR 314; [2007] FMCA 639
Australian Steel Co (Operations) Pty Ltd v Steel Foundations Limited & Anor (2003) 58 IPR 69; [2003] FCA 374
Cameron’s Unit Services Pty Limited v Kevin R Whelpton and Associates (Australia) Pty Limited & Anor (1984) 4 FCR 428
Deputy Commissioner of Taxation v Cumins [2007] FMCA 1841
Goodall v Nationwide News Pty Ltd [2007] FMCA 218
Goreng Goreng v Jennaway (2007) 164 FCR 567; [2007] FCA 2083
Kennedy v Collett [2003] FCA 1412
Menzel v Corex Plastics (Aust) Pty Ltd [1999] FCA 1218
National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1988) 19 FCR 155
Re AWB Limited [2008] VSC 473
Schouten v Telstra Corporation Limited (1993) 49 IR 399
Shepherd v Dean & Ors [1933] QWN 26
Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd [2008] FMCA 495
Verge & Anor v Devere Holdings Pty Ltd & Ors (No.4) [2008] FMCA 1421
WG & B Manufacturing Pty Ltd v Telsa Farad Pty Ltd [1999] FCA 859

Applicant:

PETER CHRISTIAN NEIL

Respondent:

REWARD PROPERTY GROUP PTY LTD

File Number:

PEG 153 of 2008

Judgment of:

Lucev FM

Hearing date:

24 November 2008

Date of Last Submission:

24 November 2008

Delivered at:

Perth

Delivered on:

5 December 2008

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr S Senathirajah

Solicitors for the Respondent:

Hall and Wilcox

ORDERS

That proceeding number PEG 153 of 2008 be transferred to the Melbourne District Registry of the Federal Magistrates Court of Australia.
That the proceedings be adjourned to a further directions hearing at a time and place to be advised before the Federal Magistrate to whom the matter is docketed in the Melbourne Registry.
That time for compliance with the Bankruptcy Notice VN 740 of 2008 be extended until further order of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 153 of 2008

PETER CHRISTIAN NEIL

Applicant

And

REWARD PROPERTY GROUP PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

The substantive proceedings involve an application made on 3 October 2008 seeking two final orders: first, to set aside a bankruptcy notice, No. VN 740/2008, served on the applicant, Mr Neil on 26 September 2008, and secondly, costs. The bankruptcy notice, which accompanies the application, claims that Mr Neil owes the respondent, Reward Property Group Pty Ltd,[1] $5,518.20, being an amount arising from costs orders made by the Supreme Court of Victoria.
[1] “Reward Property”.
Mr Neil also seeks, by…

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.

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Details

Case: [2008] FMCA 1583
Decision Date: 5 December 2008

CaseChat Overview and Summary

The matter in Neil v Reward Property Group Pty Ltd involved a dispute between the plaintiff and the defendant company, which pertained to the enforcement of a bankruptcy notice. The proceedings were originally commenced in the Federal Magistrates Court of Australia, but were transferred to the Melbourne District Registry of the same court. The core issue before the court was the transfer of the proceeding from the original registry to the Melbourne District Registry, the scheduling of a further directions hearing, and the extension of time for compliance with a bankruptcy notice.

The court considered the appropriate venue for the proceedings and determined that a transfer to the Melbourne District Registry was necessary for efficient case management. The court also noted the need for a further directions hearing to address the issues raised by the parties. In addition, the court recognised the necessity of extending the time for compliance with the bankruptcy notice to ensure that the parties had adequate opportunity to prepare their respective cases.

In light of these considerations, the court ordered that the proceeding be transferred to the Melbourne District Registry of the Federal Magistrates Court of Australia. Furthermore, the court set a further directions hearing to be held at a time and place to be advised. Lastly, the court extended the time for compliance with the bankruptcy notice until further order of the court. These orders aimed to facilitate the resolution of the dispute and ensure that the parties had a fair opportunity to present their cases.

Orders

Orders of the court

That proceeding number PEG 153 of 2008 be transferred to the Melbourne District Registry of the Federal Magistrates Court of Australia.

That the proceedings be adjourned to a further directions hearing at a time and place to be advised before the Federal Magistrate to whom the matter is docketed in the Melbourne Registry.

That time for compliance with the Bankruptcy Notice VN 740 of 2008 be extended until further order of the Court.

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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