Parsons v GIO Workers Compensation - [2003] FMCA 187

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARSONS v GIO WORKERS COMPENSATION & ANOR

[2003] FMCA 187

BANKRUPTCY – Application to set aside sequestration order and dismiss creditor’s bankruptcy petition – where applicant was not present at the first hearing of the petition – where the applicant denies having being served – where applicant ignored the statement of claim issued by the Local Court and all demands for payment of debt – whether there was evidence to prove that the applicant had been served with the bankruptcy petition before he went on holidays.

Jimenez v Welcome Homes Real Estate Pty Ltd [2002] FMCA 92
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Applicant:

ROBERT MASONS PARSONS

First Respondent:	GIO WORKERS COMPENSATION (NSW) LIMITED ACN 054 523 698
Second Respondent:	SCOTT DARREN PASCOE AS TRUSTEE OF THE PROPERTY OF ROBERT PARSONS, A BANKRUPT

File No:

SZ 107 of 2003

Delivered on:

3 July 2003

Delivered at:

Sydney

Hearing date:

13 May 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr B Skinner

Solicitors for the Applicant:

T H Drake & Associates

Counsel for the First Respondent:

Mr D R Pritchard

Solicitors for the First Respondent:

Turks Legal

Solicitors for the Second Respondent:

Turnbull Bowles

ORDERS

The sequestration order made on 13 March 2003 be set aside.
The creditor’s petition of the GIO presented on 13 March 2003 be dismissed.
The applicant Robert Parsons pay the costs of the first respondent, GIO of the proceedings, including, of the application of Robert Parsons filed on 2 April 2003, to be taxed, if not agreed, pursuant to the Federal Court Act and Rules.
The first respondent GIO pay any costs of Robert Parsons thrown away by reason of the adjournment of the hearing of the application on
13 May 2003 to be taxed, if not agreed, pursuant to the Federal Court Act and Rules.
The orders for costs in paragraphs 3 and 4 may be offset against one another.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 107 of 2003

ROBERT MASON PARSONS

Applicant

And

GIO WORKERS COMPENSATION (NSW) LIMITED
ACN 054 523 698

First Respondent

SCOTT DARREN PASCOE AS TRUSTEE OF THE PROPERTY OF ROBERT PARSONS, A BANKRUPT

Second Respondent

REASONS FOR JUDGMENT

The applicant debtor in this matter seeks review of the decision of Registrar Kavallaris who, on 13 March 2003, made a sequestration order against his estate. The sequestration order was based upon a creditor’s petition dated 20 January 2003. According to the affidavit of service of Steven Wheatland of 3 March 2003 the petition was served on the debtor on 27 February 2003 at his home in the Tuggerah Village. Tuggerah Village is a mobile home/caravan park on which the debtor has a mobile home at site numbered 57.
It is common ground that the applicant was not present when the petition was first heard on 6 March 2003. On that occasion the petition was adjourned until 13 March 2003 upon the usual terms…

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 Parsons v GIO Workers Compensation

Details

AGLC: Parsons v GIO Workers Compensation [2003] FMCA 187
Case: [2003] FMCA 187
Decision Date: 3 July 2003

CaseChat Overview and Summary

The case involved Robert Parsons, the applicant, and GIO General Insurance Office, the first respondent. The dispute centred on the validity of a sequestration order made against Parsons on 13 March 2003 and the creditor's petition presented by GIO on the same day. Parsons sought to have the sequestration order set aside and the petition dismissed. The matter was heard in the Federal Court of Australia.

The legal issues the court needed to address were whether Parsons' application to set aside the sequestration order and dismiss the petition was valid, and if the order and petition should be set aside and dismissed, respectively. The court also had to consider the costs implications of the proceedings for both parties.

The court found that the application was valid and that there were grounds to set aside the sequestration order and dismiss the petition. The order and petition were set aside, and the applicant was directed to pay the costs of GIO in the proceedings, to be taxed if not agreed. The first respondent, GIO, was ordered to pay any costs thrown away by Parsons due to the adjournment of the hearing, also to be taxed if not agreed. The orders for costs could be offset against one another.

In summary, the Federal Court set aside the sequestration order and dismissed the creditor's petition, and directed that the costs of the proceedings be taxed and potentially offset.

Orders

Orders of the court

The sequestration order made on 13 March 2003 be set aside.

The creditor’s petition of the GIO presented on 13 March 2003 be dismissed.

The applicant Robert Parsons pay the costs of the first respondent, GIO of the proceedings, including, of the application of Robert Parsons filed on 2 April 2003, to be taxed, if not agreed, pursuant to the Federal Court Act and Rules.

The first respondent GIO pay any costs of Robert Parsons thrown away by reason of the adjournment of the hearing of the application on

13 May 2003 to be taxed, if not agreed, pursuant to the Federal Court Act and Rules.

The orders for costs in paragraphs 3 and 4 may be offset against one another.

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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