FEDERAL COURT OF AUSTRALIA
Queensland Building and Construction Commission v Mead [2024] FCA 1355
File number(s): QUD 487 of 2023 Judgment of: MEAGHER J Date of judgment: 25 November 2024 Catchwords: BANKRUPTCY – Sequestration order made by a registrar – Application made by respondent for review of sequestration order – Where defects in documents alleged – Whether the respondent was ordinarily resident or had a dwelling house in Australia – Where criteria for sequestration order are established – Whether the respondent is solvent – Whether the sequestration order ought not be made for other sufficient cause – Where no reason to go behind the judgment debt – Where the respondent has not established solvency – Where no other sufficient cause established – Sequestration order is affirmed Legislation: Bankruptcy Act 1966 (Cth) ss 35A(1)(h), 35A(6), 40, 43, 43(1), 52(1), 52(2)(b), 52(4), 306
Bankruptcy Regulations (Cth) regs 9, 10, 10A
Federal Court (Bankruptcy) Rules 2016 (Cth) rr 2.02, 4.02, 4.04, 4.06
Cases cited: Baycorp Collections PDL (Aus)Pty Ltd v Hsia [2018] FCCA 249
Bechara v Bates (2021) 286 FCR 166
Cain v Whyte (1933) 48 CLR 639
Daly v Watson (1994) 50 FCR 544
Endresz v Australian Securities and Investment Commission (No 2) (2015) 228 FCR 334
Fuller v Alford (2017) 252 FCR 168
Harris v Caladine (1991) 172 CLR 84
Mathai v Kwee (2005) ABC(NS) 268
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Pineview Property Holdings Pty Ltd v Dimitriou (No2) [2019] FCA 1416
Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132
Re Taylor; ex parte Natwest Australia Bank Limited (1992) 37 FCR 194
Sandell v Porter (1966) 115 CLR 666
Stankiewicz v Plata [2000] FCA 1185
Totev v Sfar (2008) 167 FCR 193
Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 69 Date of hearing: 26 June 2024 Counsel for the Applicant: Mr NJ Derrington Solicitor for the Applicant: Gadens Lawyers Counsel for the Respondent: The Respondent appeared in-person ORDERS
QUD 487 of 2023 BETWEEN: QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
Applicant
AND: MAXWELL JAMES MEAD
Respondent
ORDER MADE BY:
MEAGHER J
DATE OF ORDER:
25 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The interim application filed by the respondent on 28 February 2024 is dismissed.
2.The Orders made by Judicial Registrar Schmidt on 7 February 2024 are affirmed.
3.The applicant creditor’s costs of and incidental to the interim application filed on 28 February 2024 be paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MEAGHER J
INTRODUCTION
This is an application made by Mr Maxwell Mead for review of the sequestration order made by Judicial Registrar Schmidt on 7 February 2024 under the Bankruptcy Act 1966 (Cth).
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- Case
- [2024] FCA 1355
- Decision Date
CaseChat Overview and Summary
The court had to decide several key legal issues, including whether the respondent was ordinarily resident or had a dwelling house in Australia, whether the criteria for a sequestration order were established, and whether the respondent was solvent. The court also needed to determine if there was any other sufficient cause why the sequestration order should not be made. Mr Mead argued that he was not ordinarily resident in Australia, that the debt was not his responsibility, and that making a sequestration order would cause undue hardship to him and his wife. He also claimed that the QBCC had unreasonably refused offers of settlement.
The court found that Mr Mead was ordinarily resident in Australia and had a dwelling house in the country. The court dismissed the argument that the debt was not his responsibility, as he was the sole director of the company that incurred the debt. The court also found that Mr Mead had not established that he was solvent or that there was any other sufficient cause why the sequestration order should not be made. The court held that there was no reason to go behind the judgment debt and that Mr Mead had not provided sufficient evidence to rebut the presumption of solvency. The court further found that Mr Mead's ill health and his wife's mental health issues did not provide sufficient grounds to set aside the sequestration order.
The court affirmed the sequestration order made by the judicial registrar and dismissed Mr Mead's application for review. The costs of the review application were to be paid from the respondent's estate. The court concluded that the respondent had not established any grounds to set aside the sequestration order, and the order was therefore affirmed.
Orders
Orders of the court
1. The interim application filed by the respondent on 28 February 2024 is dismissed.
2. The Orders made by Judicial Registrar Schmidt on 7 February 2024 are affirmed.
3. The applicant creditor’s costs of and incidental to the interim application filed on 28 February 2024 be paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Mr Mead submitted that he is not insolvent. He stated that he is able to meet all his bills as they become due and this debt is not one for which he should be responsible. Further, he submitted, the debt that was incurred was beyond his control – it was incurred by Nationwide during the COVID-19 pandemic.Making a sequestration order would cause extreme hardship Mr Mead argued that were the Court to make a sequestration order, it would have an extremely adverse impact on his wife. She has pre-existing mental health issues which have been exacerbated by this process. Mr Mead’s wife has been the main income earner in the family since Mr Mead was struck off the roll as a solicitor. However, Mr Mead’s wife’s health has since deteriorated further such that she has been unable to work. Further, Mr Mead submitted, the medical evidence does not fully portray the extent of his wife’s mental health condition – they simply “state blandly what the situation is”. Mr Mead’s submission was that if his wife’s mental health was to deteriorate further, as would happen if a sequestration order was made and any “attack” on the property is to occur, she would continue to be unable to work. In Mr Mead’s submission, if a sequestration order was to be made, it will lead to “an unconscionable outcome” for his wife. As well, Mr Mead submitted that his ill health has precluded him from working although, in oral submissions, he stated that his health was improving such that he may be able to work again. Mr Mead also submitted that if a sequestration order were made, both he and his wife would suffer as their lifestyle will be even more negatively impacted. To that end, Mr Mead’s written submissions include that it was not in the public interest for a sequestration order to be made as follows:I submit that a decision to not issue a sequestration order against me would actually be in the public interest in that it would show empathy and humanity and it would avoid undue hardship on both my wife and myself; avoid the unconscionable outcome of damaging increased mental health strain on my wife, and ensure that my wife, an innocent third party herein would not be traumatized by the loss of her home, hospitalization and the loss of her employment Other submissions Mr Mead referred to the statement of Kiefel CJ, Keane and Nettle JJ in Ramsay at [67] that a Bankruptcy Court is concerned to “protect the interests of third parties who were not participants in the litigation which led to the judgment in question”. He argued that this statement applied to third parties, such as his wife, who are in “proximity to the debtor”. In that regard, he pointed to the interests of his wife, given the risk that the home she owns will be “attacked” by the trustees. Mr Mead also submitted that the QBCC does not need the money the subject of the judgment debt, particularly in the context of the overall loss arising from the pandemic. Further, Mr Mead stated that the QBCC has run many businesses into bankruptcy.