R.E.B.A. v Low (No.2) - [2009] FMCA 142

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R.E.B.A. v LOW (No.2)

[2009] FMCA 142

BANKRUPTCY – Sequestration order – fine and costs imposed in disciplinary proceedings – whether for offence against a law.

BANKRUPTCY – No statement concerning debt agreement – whether formal defect or irregularity.

Bankruptcy Act 1966 (Cth), ss.52(5), 82(3), 306(1)
Federal Court Rules, O.62
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), r.4.06(3)(b)(ii)
Real Estate and Business Agents Act 1978 (WA), ss.4, 68(4) and (6)(a), 102(1)(a), 103(1)(b)

Albarran v Companies Auditors and Liquidators Disciplinary Board (2006) 151 FCR 466; [2006] FCAFC 69
Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board & Anor (2007) 231 CLR 350; [2007] HCA 23
Law Society of Tasmania v Turner (2001) 11 Tas R 1; [2001] TASSC 129
Moore-McQuillan v Scott (2006) 149 FCR 486; [2006] FCA 63
Real Estate & Business Agents Supervisory Board v Low [2008] FMCA 1030
Re Phillips (1963) 81 WN (NSW) 179

Applicant:

REAL ESTATE & BUSINESS AGENTS SUPERVISORY BOARD

Respondent:

GLENN WILLIAM LOW

File Number:

PEG 30 of 2008

Judgment of:

Lucev FM

Hearing date:

19 August 2008

Date of Last Submission:

19 August 2008

Delivered at:

Perth

Delivered on:

27 February 2009

REPRESENTATION

Counsel for the Applicant:

Mr P Bevilacqua

Solicitor for the Applicant:

Ms J King

Respondent:

No appearance

ORDERS

A sequestration order be made against the estate of Glenn William Low.
Applicant’s costs, including reserved costs, if not agreed, be taxed by a Registrar of this Court in accordance with Order 62 of the Federal Court Rules, and paid from the estate of Glenn William Low in accordance with the Bankruptcy Act1966 (Cth).

AND the Court notes that the date of the act of bankruptcy is 4 February 2008.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 30 of 2008

REAL ESTATE & BUSINESS AGENTS SUPERVISORY BOARD

Applicant

And

GLENN WILLIAM LOW

Respondent

REASONS FOR JUDGMENT

Introduction

In reasons for judgment delivered on 1 August 2008[1] this Court found that the Respondent Debtor’s liability to the Applicant Creditor under SAT Orders[2] did not arise from an obligation incurred before the Respondent Debtor’s bankruptcy, the date of which was 24 November 2004 and which expired by the effluxion of time on 19 April 2008, and that the liability arising from the SAT Orders was therefore not a provable debt in the Respondent Debtor’s bankruptcy. Therefore, issues concerning the competency of the Applicant Creditor to enforce any remedy, or the requirement to obtain leave of the Federal Court or this Court to commence proceedings did not arise.[3] A question arose as to whether the penalty (costs) and fine imposed under the SAT Orders were in relation to an offence against a law for the purposes of s.82(3) of the Bankruptcy Act1966 (Cth),[4] and therefore not provable in bankruptcy. The proceedings were adjourned to allow the parties to make further submissions in relation to that issue. That issue is dealt with further below.
[1] Real Estate &Business Agents Supervisory…

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 R.E.B.A. v Low (No.2)

Details

AGLC: R.E.B.A. v Low (No.2) [2009] FMCA 142
Case: [2009] FMCA 142
Decision Date: 27 February 2009

CaseChat Overview and Summary

The case of R.E.B.A. v Low (No.2) involved a sequestration order application concerning Glenn William Low. The primary dispute was whether a fine and costs imposed on Low in disciplinary proceedings constituted an offence against a law, thus triggering an act of bankruptcy. Additionally, the application questioned whether the lack of a statement regarding a debt agreement constituted a formal defect or irregularity warranting dismissal of the application.

The court was tasked with determining if the fine and costs imposed on Low in disciplinary proceedings constituted an offence against a law. It also needed to decide whether the absence of a statement concerning a debt agreement was a formal defect or irregularity that would necessitate dismissing the application. The court had to carefully interpret the relevant provisions of the Bankruptcy Act 1966 (Cth) to ascertain whether these matters indeed qualified as acts of bankruptcy.

The court found that the fine and costs imposed on Low in disciplinary proceedings did not constitute an offence against a law, thus not amounting to an act of bankruptcy. However, it determined that the absence of a statement regarding a debt agreement did not amount to a formal defect or irregularity. Consequently, the court concluded that these factors did not prevent the making of a sequestration order. The court ordered a sequestration of Low's estate and directed that the applicant's costs be taxed and paid from Low's estate in accordance with the Bankruptcy Act 1966 (Cth). The court also noted that the date of the act of bankruptcy was 4 February 2008.

Orders

Orders of the court

A sequestration order be made against the estate of Glenn William Low.

Applicant’s costs, including reserved costs, if not agreed, be taxed by a Registrar of this Court in accordance with Order 62 of the Federal Court Rules, and paid from the estate of Glenn William Low in accordance with the Bankruptcy Act 1966 (Cth).

AND the Court notes that the date of the act of bankruptcy is 4 February 2008.

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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