Oxford Gold Pty Ltd v Francis - [2011] FMCA 315

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OXFORD GOLD PTY LTD & ORS v FRANCIS

[2011] FMCA 315

BANKRUPTCY – Leave to continue proceedings in the District Court of Western Australia.

Bankruptcy Act 1966 (Cth), ss.27(1), 58(3)(b)

Cordes v Dr Peter Ironside Pty Ltd (2009) 235 FLR 94; [2009] QCA 302
Lovell v Penkin (a bankrupt) (2008) 101 ALD 335; [2008] FCA 637
Meriton Apartments Pty Ltd & Anor v Industrial Court of New South Wales & Anor (2008) 171 FCR 380; [2008] FCAFC 172
Secure Parking (WA) Pty Ltd v Francis [2010] FMCA 191
Singh v Official Trustee in Bankruptcy (2007) 214 FLR 84; [2007] FMCA 1367

First Applicant:

OXFORD GOLD PTY LTD
ACN: 009 465 650

Second Applicant:

ANTONIA LOWRY

Third Applicant:

LORENZO ROSSI

Respondent:

IAN CHARLES FRANCIS AS TRUSTEE OF THE BANKRUPT ESTATE OF MICHAEL JOHN MCPHEE

File Number:

PEG 96 of 2011

Judgment of:

Lucev FM

Hearing date:

27 April 2011

Date of Last Submission:

27 April 2011

Delivered at:

Perth

Delivered on:

27 April 2011

REPRESENTATION

Counsel for the Applicants:

Mr S. Blyth

Solicitors for the Applicants:

Lewis Blyth & Hooper

For the Respondent:

No appearance

ORDERS

The applicants have leave under s.58(3)(b) of the Bankruptcy Act 1966 (Cth):
(a)nunc pro tunc, to take such steps as have already been taken, in proceeding CIV 272 of 2007 in the District Court of Western Australia (“the District Court Proceedings”); and
(b)to take any fresh steps in the District Court Proceedings.
The respondent have liberty to apply in relation to the imposition of conditions upon the grant of leave under Order 1.
There be liberty to apply with respect to the costs of this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 96 of 2011

OXFORD GOLD PTY LTD
ACN: 009 465 650

First Applicant

ANTONIA LOWRY

Second Applicant

LORENZO ROSSI

Third Applicant

And

IAN CHARLES FRANCIS AS TRUSTEE OF THE BANKRUPT ESTATE OF MICHAEL JOHN MCPHEE

Respondent

REASONS FOR JUDGMENT

(Ex tempore – edited from the transcript)

Introduction

Some time in 2007, the applicants commenced proceedings by way of writ of summons in the District Court of Western Australia in a proceeding numbered CIV 272 of 2007 against Michael John McPhee, a solicitor.[1] The District Court Proceedings allege negligence and breach of contract by Mr McPhee. Mr McPhee became a bankrupt on or about 30 April 2008.
[1] “District Court Proceedings”.
The proceedings presently before this Court seek leave under section 58(3)(b) of the Bankruptcy Act 1966 (Cth)[2] to regularise steps taken in the District Court Proceedings and to allow those proceedings to continue.
[2] “Bankruptcy Act”.
The applicants, it would appear, became aware of Mr McPhee’s bankruptcy some time in 2008 or 2009, but were seemingly unaware of the requirement to obtain leave of this Court, or the Federal Court, to continue to proceed against Mr McPhee or, more correctly, his Trustee in Bankruptcy, until informed of the necessity to do so by their present solicitors in April 2011. Section 58(3)(b)…

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: [2011] FMCA 315
Decision Date: 27 April 2011

CaseChat Overview and Summary

Oxford Gold Pty Ltd filed an application against Francis in relation to proceedings that had already been taken in the District Court of Western Australia. The applicants sought leave to take certain steps nunc pro tunc as well as permission to take fresh steps in the District Court Proceedings. The legal issues that arose pertained to the interpretation and application of section 58(3)(b) of the Bankruptcy Act 1966 (Cth), specifically concerning the leave required to undertake specific actions in the District Court Proceedings. The court needed to determine whether the applicants were entitled to the relief sought under the statute and, if so, what conditions should be imposed on the grant of leave.

The court examined the statutory provision and the nature of the relief requested by the applicants. It considered the circumstances in which such leave may be granted and the principles guiding the imposition of conditions. The court found that the applicants had demonstrated a sufficient basis for seeking leave under the statute and that the relief sought was appropriate. However, the court also considered that it was necessary to impose conditions on the grant of leave to protect the respondent's interests. The court granted the applicants leave to take the steps they had already taken and to take any fresh steps in the District Court Proceedings, subject to the imposition of conditions to be determined in a further application. The court also allowed the respondent liberty to apply in relation to the costs of the application.

The final orders of the court included granting the applicants leave to take the steps they had already taken and to take any fresh steps in the District Court Proceedings, subject to the imposition of conditions. The court allowed the respondent liberty to apply in relation to the costs of the application. The court's decision provides guidance on the interpretation and application of section 58(3)(b) of the Bankruptcy Act 1966 (Cth) and the principles that should be considered when granting leave in similar circumstances.

Orders

Orders of the court

The applicants have leave under s.58(3)(b) of the Bankruptcy Act 1966 (Cth):

(a) nunc pro tunc, to take such steps as have already been taken, in proceeding CIV 272 of 2007 in the District Court of Western Australia (“the District Court Proceedings”); and

(b) to take any fresh steps in the District Court Proceedings.

The respondent have liberty to apply in relation to the imposition of conditions upon the grant of leave under Order 1.

There be liberty to apply with respect to the costs of this application.

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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