Osborne v Schepis - [2014] FCCA 531

FEDERAL CIRCUIT COURT OF AUSTRALIA

OSBORNE & ORS v SCHEPIS

[2014] FCCA 531

Catchwords:

BANKRUPTCY – Sequestration order – review of registrar’s decision – sequestration order upheld – application dismissed – costs awarded.

First Applicant:

KEITH ROBERTSON OSBORNE

Second Applicant:

NICHOLAS JOHN SATOURIS

Third Applicant:

ANDREW MICHAEL CHRISTOPOULOS

Respondent:

ASHLEY MARIE SCHEPIS

File Number:

SYG 2261 of 2013

Judgment of:

Judge Burnett

Hearing date:

19 February 2014

Date of Last Submission:

19 February 2014

Delivered at:

Brisbane

Delivered on:

19 February 2014

REPRESENTATION

Solicitors for the Applicant:

Colin Biggers & Paisley

The Respondent appeared on her own behalf.

ORDERS

That the application filed 13 February 2014 be dismissed.
That the Applicant pay the Respondents’ costs of and incidental to the application to be assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

SYG 2261 of 2013

KEITH ROBERTSON OSBORNE

First Applicant

NICHOLAS JOHN SATOURIS

Second Applicant

ANDREW MICHAEL CHRISTOPOULOS

Third Applicant

And

ASHLEY MARIE SCHEPIS

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

The applicant seeks review of a sequestration order made by Registrar Lynch on 23 January 2014. It appears that the application was heard on that occasion without the respondent debtor having been afforded an opportunity to be heard. That appears to have occurred because of confusion in the registry and an exchange between the debtor and Registrar Ng. Notwithstanding the fact that the order itself perhaps ought not to have been made on the day, the application for review must fail for this reason: the debtor’s complaint is that she is not truly indebted, but that contention is simply incorrect.
An order was made against her in District Court of New South Wales proceedings before Judge McLoughlin. It appears that there was some negligence on the part of those representing her in those proceedings. Accordingly when the matter again came before his Honour on 24 November, when his Honour sought to deal with the representative’s omission, an exchange occurred between his Honour and Mr Ling, who was then representing the debtor. The upshot of the exchange was that Mr Ling consented to an order that he indemnify the debtor in respect of a costs order that was made against her on 16 August 2011.
His Honour did not discharge the costs order against the debtor, but simply ordered that Mr Ling indemnify the debtor in respect of those costs. It is those costs that bring this application to court today. They were assessed in due course and a judgment was entered. A bankruptcy notice was served but went unanswered. A creditor’s petition was also served. The debtor then contacted one of the registrars of the court to inform them of her complaint that she was not indebted.
The simple fact remains that she is indebted. While she may have a claim against Mr Ling, she has not sought to enforce it. On the day that the matter came before the registrar she was not present. That was because of a misunderstanding on her part, but the determination to proceed…

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 Osborne v Schepis

Details

AGLC: Osborne v Schepis [2014] FCCA 531
Case: [2014] FCCA 531
Decision Date: 19 February 2014

CaseChat Overview and Summary

In *Osborne v Schepis*, the applicant sought to review a sequestration order made by the Registrar against the respondent. The application to set aside the sequestration order was dismissed by the court.

The primary legal issue before the court was whether the Registrar's decision to make the sequestration order was correct, and consequently, whether the sequestration order should be upheld or set aside. This involved an examination of the requirements for a creditor's petition for sequestration under the *Bankruptcy Act 1966* (Cth).

The court upheld the Registrar's decision, finding that the requirements of the *Bankruptcy Act* had been met. The court applied the principles governing sequestration orders, including the need for a debt to be due and payable and for the debtor to have committed an act of bankruptcy. Having found these elements established, the court dismissed the application to set aside the sequestration order. The court also made orders regarding costs.

Orders