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O'Meara v Hitwise Pty Ltd

O'Meara v Hitwise Pty Ltd

Case [2006] FMCA 1927 22 December 2006

Civil Litigation & Procedure

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

O’MEARA v HITWISE PTY LTD

[2006] FMCA 1927

BANKRUPTCY – Application to set aside sequestration order – whether creditor’s petition can be amended once sequestration order made.

BANKRUPTCY – power of the court to order the substitution of a creditor after sequestration order made.

BANKRUPTCY – Sequestration Order – solvency.

BANKRUPTCY – Review of Registrar’s decision.

Bankruptcy Act 1966; ss.33, 40, 43, 44, 49, 52
Federal Magistrates Court (Bankruptcy) Rules 2006, r.16.05(2), 20.03

Allesch v Maunz (2000) 203 CLR 172
Barber v Bone Thorpe International Pty Ltd [2001] FMCA 4
D’Onofrio; ex parte Blyth (1983) 76 FLR 136
Ex parte Dearle; Re Hastings (1884) 14 QBD 184
Griffiths v Boral Resources (Qld) Pty Limited [2006] FCAFC 149
Hyams v Elder Smith Goldsbrough Mort Ltd (1976) 133 CLR 637
MacDonald v Official Trustee in Bankruptcy (2001) 107 FCR 72
MacIntosh v Lobel (1993) 30 NSWLR 441
Matthews v Collett [2000] FCA 224
Miles v Shell Company of Australia (1998) 156 ALR 133
Nicholas v Hills (2004) 136 FCR 201
Re Brindle; ex parte FB & FA McMahon Pty Ltd (1992) 35 FCR 506
Re Buckley; ex parte James Hardie & Co Pty Ltd (1976) 13 ALR 291
Re Faulkner (1960) 19 ABC 34
Re Lakatos; ex parte Lakatos v DCT (1996) 33 ATR 145
Re Sarina; ex parte Wollondilly Shire Council (1980) 32 FLR 596
Re Touma; Saparas v Touma (2000) 171 ALR 275
Sandell v Porter (1966) 115 CLR 666
Shortall v Keily [2005] FCA 1930
Wren v Mahony (1972) 126 CLR 212
2000 Olympic Games Pty Ltd v Daly [2000] FCA 1286

Applicant:

HEDLEY NED O’MEARA

Respondent:

HITWISE PTY LTD

File number:

MLG 985 of 2005

Judgment of:

Wilson FM

Hearing date:

24 August 2006

Date of last submission:

2 September 2006

Delivered at:

Brisbane

Delivered on:

22 December 2006

REPRESENTATION

Counsel for the Applicant:

N/A

The Applicant in person:

Mr O’Meara

Counsel for the Respondent:

Mr Catlin

Solicitors for the Respondent:

Matthew Shaw & Associates

ORDERS

That the orders of Federal Magistrate Riethmuller made on 3 July 2006 be set aside.
That the application for review of the Registrar’s orders made on

27 September 2005 be dismissed.
That the application filed 16 November 2005 be dismissed.
That the applicant pay the respondent’s costs of both applications, including reserved costs, to be assessed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

MLG 985 of 2005

HEDLEY NED O’MEARA

Applicant

And

HITWISE PTY LTD

Respondent

REASONS FOR JUDGMENT

The applicant bankrupt seeks to set aside a sequestration order made against his estate on 27 September, 2005. The respondent creditor seeks to maintain that sequestration order, or alternatively seeks to obtain a sequestration order on its own application against the estate of the applicant. The matter has a lengthy, and somewhat convoluted, history. In order to understand the applications that are required to be dealt with by the court, it is necessary to recount that history.
On 27 September 2005 a sequestration order was made…

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 O'Meara v Hitwise Pty Ltd

Details

AGLC: O'Meara v Hitwise Pty Ltd [2006] FMCA 1927
Case: [2006] FMCA 1927
Decision Date: 22 December 2006

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant, O'Meara, sought to challenge orders made by the Registrar and Federal Magistrate Riethmuller in relation to proceedings in the Federal Court between the applicant and Hitwise Pty Ltd. The dispute at the heart of the matter revolved around the applicant's contentions that the orders made by the Registrar and the Magistrate were flawed, and that the applicant had been denied procedural fairness. The applicant sought to set aside those orders, arguing that they were unjust and that there had been errors in the process leading to their issuance.

The central legal issues before the court were whether the orders made by the Registrar and the Magistrate were indeed flawed, and if the applicant's procedural fairness had been compromised. The court needed to determine if the orders should be set aside and if the application for review of the Registrar's orders should proceed. Additionally, the court had to assess the validity of the applicant's claims regarding the procedural fairness of the proceedings.

The court found that the orders made by the Registrar and the Magistrate were correctly issued, and that the applicant had not demonstrated any procedural unfairness. The applicant's arguments did not meet the necessary threshold to warrant setting aside the orders. Consequently, the court dismissed the application for review of the Registrar's orders and also dismissed the applicant's application. The court further ruled that the applicant was to bear the costs of both applications, including reserved costs, which were to be assessed by the court.

Orders

Orders of the court

That the orders of Federal Magistrate Riethmuller made on 3 July 2006 be set aside.

That the application for review of the Registrar’s orders made on

27 September 2005 be dismissed.

That the application filed 16 November 2005 be dismissed.

That the applicant pay the respondent’s costs of both applications, including reserved costs, to be assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

O'Meara v Hitwise Pty Ltd [2006] FMCA 1927

Most Recent Citation

O'Meara v Hitwise Pty Ltd [2007] FCAFC 114

Cases citing this decision · 1 of 1 shown

O'Meara v Hitwise Pty Ltd & Anor
[2007] FCAFC 114 Para 2

…der continued to be stayed. On 22 December 2006 the application for review of the sequestration order was dismissed ( O’Meara v Hitwise Pty Ltd [2006] FMCA 1927). Thus, the sequestration order made by the Registrar stands.…

View all 1 citing cases →

Cases cited in this decision · 16 of 16 shown

Martindale ACF P/L v Johnson
[2013] FMCA 63 Para 16

…In Miles v Shell Company of Australia (1998) 156 ALR 133 at 136 Sundberg J said: “The basis of the present application is that despite the judgment the applicant was not in truth indebted to the respondent. When a court exercising bankruptcy jurisdiction is invited to go behind a judgment, the first question is wheth…
Griffiths v Boral Resources (Qld) Pty Ltd
[2006] FCAFC 149 Para 32

…ompliance with the bankruptcy notice served by it, subject to consideration of s. 52(4) of the Act: Griffiths v Boral Resources (Qld) Pty Limited [2006] FCAFC 149.…
Shortall v Keily
[2005] FCA 1930 Para 27

…e of whether a sequestration order should have been made on 27 September 2005, in light of all of the evidence now before the court: Shortall v Keily [2005] FCA 1930.…
MacDonald v Official Trustee in Bankruptcy
[2001] FCA 140

…stings (1884) 14 QBD 184 Griffiths v Boral Resources (Qld) Pty Limited [2006] FCAFC 149 Hyams v Elder Smith Goldsbrough Mort Ltd (1976) 133 CLR 637 MacDonald v Official Trustee in Bankruptcy (2001) 107 FCR 72 MacIntosh v Lobel (1993) 30 NSWLR 441 Matthews v Collett [2000] FCA 224 Miles v Shell Company of Australia (1998) 156 ALR 133 Nicholas v Hil…
Barber v Bone Thorpe International Pty Ltd
[2001] FMCA 4 Para 12

…on order is set aside, the creditor’s petition should remain in force to enable substitution, relying on Barber v Bone Thorpe International Pty Ltd [2001] FMCA 4.…
2000 Olympic Games Pty Ltd v Daly
[2000] FCA 1286

…171 ALR 275 Sandell v Porter (1966) 115 CLR 666 Shortall v Keily [2005] FCA 1930 Wren v Mahony (1972) 126 CLR 212 2000 Olympic Games Pty Ltd v Daly [2000] FCA 1286…
Allesch v Maunz
[2000] HCA 40 Para 27

…On a hearing de novo, I am required to consider the matter afresh, regardless of whether or not there was error at first instance: Allesch v Maunz (2000) 203 CLR 172 at 180; Re Brindle; ex parte FB & FA McMahon Pty Ltd (1992) 35 FCR 506; Nicholas v Hills (2004) 136 FCR 201. In those circumstances, I will proceed to l…
Re Touma; Saparas v Touma
[2000] FCA 308 Para 5

…vency and also that the discretion should be exercised in the favour of the debtor, is one placed on the [debtor]: See also Re Touma; Saparas v Touma (2000) 171 ALR 275 at [11], also referred to by the applicant.…
Touma v Saparas
[2000] NSWCA 11 Para 5

…to establish solvency and also that the discretion should be exercised in the favour of the debtor, is one placed on the [debtor]: See also Re Touma; Saparas v Touma (2000) 171 ALR 275 at [11], also referred to by the applicant.…
Matthews v Collett
[2000] FCA 224 Para 31

…y notice, the present respondent has attempted to avoid the need for the court to consider the sort of problems discussed in Matthews v Collett [2000] FCA 224.…
Liati, Angela v Fitzsimons, Christopher Ronald
[1996] FCA 447 Para 27

…gardless of whether or not there was error at first instance: Allesch v Maunz (2000) 203 CLR 172 at 180; Re Brindle; ex parte FB & FA McMahon Pty Ltd (1992) 35 FCR 506; Nicholas v Hills (2004) 136 FCR 201. In those circumstances, I will proceed to look at the issue of whether a sequestration order should have been m…
Re DOnofrio, N. v Ex Parte Blyth, Robert George
[1983] FCA 241 Para 29

…him due to his wife’s bankruptcy. In any event an interest in a matrimonial home is not a readily realizable asset: D’Onofrio; ex parte Blyth (1983) 76 FLR 136.…
Hyams v Elder Smith Goldsbrough Mort Ltd
[1976] HCA 18 Para 10

…hich the substituted creditor must ordinarily prove its debt is at the time the sequestration order is made: Hyams v Elder Smith Goldsbrough Mort Ltd (1976) 133 CLR 637.…
Wren v Mahony
[1972] HCA 5 Para 15

…the existence of a judgment, in appropriate cases, a court in bankruptcy may itself determine whether a debt is in fact and in law due: Wren v Mahony (1972) 126 CLR 212. However, it will not do so as a matter of course. As Barwick CJ observed, at 224: “The judgment is never conclusive in bankruptcy. It does not alway…
Sandell v Porter
[1966] HCA 28 Para 4

…ther the debtor does not have to have sufficient cash at hand to pay all creditors in full immediately, if he has realizable assets: Sandell v Porter (1966) 115 CLR 666 at 670.…
(1884) 14 QBD 184
(1884) 14 QBD 184 Para 34

…Any creditor may petition on an act of bankruptcy whether or not it was the creditor that issued the bankruptcy notice: Ex parte Dearle; Re Hastings (1884) 14 QBD 184. In the present case, both Hall & Wilcox and the respondent had issued bankruptcy notices that were not complied with.…

Legislation cited in this decision · 2

Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)
16.05(2), 20.03 3 mentions (from Para 5)
Bankruptcy Act 1966 (Cth)
1 mention (from Para 3)