Ray v Perrett - [2007] FCA 1624

FEDERAL COURT OF AUSTRALIA
Ray v Perrett [2007] FCA 1624
GREG RAY v PAUL PERRETT
NSD 1975 OF 2007
GRAHAM J
11 OCTOBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1975 OF 2007

BETWEEN:

GREG RAY
Applicant

AND:

PAUL PERRETT
Respondent

JUDGE:

GRAHAM J

DATE OF ORDER:

11 OCTOBER 2007

WHERE MADE:

SYDNEY

THE COURT:
1.Grants leave to the respondent to file and serve such Amended Notice of Motion as he may be advised on or before 19 October 2007.
2.Directs the respondent to file and serve any affidavits on which he wishes to rely on the hearing of the Notice of Motion or an Amended Notice of Motion on or before 19 October 2007.
3.Directs the applicant to file and serve any affidavits on which he wishes to rely on the hearing of the Notice of Motion or an Amended Notice of Motion on or before 23 October 2007.
4.Orders that the respondent’s Notice of Motion filed 8 October 2007 and any Amended Notice of Motion be fixed for hearing before Graham J at 10.15 am on 26 October 2007.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1975 OF 2007

BETWEEN:

GREG RAY
Applicant

AND:

PAUL PERRETT
Respondent

JUDGE:

GRAHAM J

DATE:

11 OCTOBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 12 July 2007 the applicant, Greg Ray, filed a Creditor’s Petition in proceedings SYG 2163 of 2007 in the Federal Magistrates Court of Australia. By that petition, Greg Ray sought the making of a Sequestration Order against the estate of Paul Perrett, the respondent named in the Creditor’s Petition.
On 2 October 2007 Raphael FM ordered that the proceedings be transferred to this Court for hearing.
On 8 October 2007 a Notice of Motion was filed in this Court, in the proceedings on the Creditor’s Petition, which have become identified as NSD 1975 of 2007. The Notice of Motion is before the Court today for directions only.
The Notice of Motion appears to have been signed by Paul John Perrett, the respondent named in the Creditor’s Petition. The address provided for Mr Perrett in the Notice of Motion is 159 Narrowneck Road, Katoomba 2780. His address for service is identified as ‘Agent: 8/369 Glebe Point Road, Glebe 2037’.
When the matter was called earlier today, a Mr Peter Alexander Gargan of 8/369 Glebe Point Road, Glebe announced an appearance for the respondent contending that he had a right to appear under s 308(d) of the Bankruptcy Act 1966 (Cth) (‘the Act’), which relevantly provides:
‘308.Subject to this Act, for the purposes of this Act:
…
(d)any person may act by his … agent duly authorised in that behalf.’
My attention has been drawn to Order 9 rule 1 of the Federal Court Rules, which relevantly provides:
‘(1)A respondent may enter an appearance and may defend a proceeding by…

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: [2007] FCA 1624
Decision Date: 11 October 2007

CaseChat Overview and Summary

In the case of Ray v Perrett, the Federal Court of Australia was presented with a Creditor's Petition filed by Greg Ray against Paul Perrett. The crux of the dispute involved the validity of a bankruptcy notice and the subsequent sequestration order sought by Ray. The matter was initially filed in the Federal Magistrates Court before being transferred to the Federal Court.

The primary legal issue before the court was whether the questions of fact, as outlined in Perrett's Notice of Motion, warranted a trial by jury under section 30(3) of the Bankruptcy Act 1966 (Cth). Additionally, the court had to determine the appropriate procedural steps for addressing the Notice of Motion and the Creditor's Petition.

The court, presided over by Justice Graham, observed that the questions of fact listed in Perrett's Notice of Motion did not meet the criteria for a jury trial as specified in the Bankruptcy Act. Nonetheless, the court granted Perrett leave to file an Amended Notice of Motion to reconsider the framing of any potential questions of fact. The court also directed the parties to file and serve any relevant affidavits before the hearing. Considering the applicant's desire for a prompt resolution, the court scheduled the hearing of Perrett's Notice of Motion for 26 October 2007, at 10:15 am, after which it would proceed to address the Creditor's Petition.

In summary, the court allowed Perrett to amend his Notice of Motion to potentially include questions of fact that might warrant a jury trial. The court also set deadlines for the submission of affidavits and scheduled the hearing dates for both the Notice of Motion and the Creditor's Petition.

Orders