Re Hutton, Lynette Denise & Anor Ex Parte - [1995] FCA 1091

IN THE FEDERAL COURT OF AUSTRALIA      )
GENERAL DIVISION  )
   No. QP 425 of 1995
BANKRUPTCY DISTRICT OF THE            )
STATE OF QUEENSLAND                   )

RE:LYNETTE DENISE HUTTON AND PETER HUTTON
Debtors

EX PARTE:BORAL MONTORO PTY LTD ACN 002 944 694 trading as BORAL ROOF TILES
Applicant

AND:QUEENSLAND WELDED MESH PTY LTD ACN 010 471 741
Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER: Spender J

DATE OF ORDER: 15 December 1995

WHERE MADE: Brisbane

THE COURT ORDERS THAT:

(1)Boral Montoro Pty Ltd ACN 002 944 694, trading as Boral Roof Tiles, be substituted as petitioning creditor for Queensland Welded Mesh Pty Ltd ACN 010 471 741 in petition number 425 of 1995.

(2)The substituting petitioning creditor's costs of today be its costs in the petition.

NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA      )
GENERAL DIVISION  )
   No. QP 425 of 1995
BANKRUPTCY DISTRICT OF THE            )
STATE OF QUEENSLAND                   )

RE:LYNETTE DENISE HUTTON AND PETER HUTTON
Debtors

EX PARTE:BORAL MONTORO PTY LTD ACN 002 944 694 trading as BORAL ROOF TILES
Applicant

AND:QUEENSLAND WELDED MESH PTY LTD ACN 010 471 741
Respondent

CORAM:    Spender J
DATE:     15 December 1995
PLACE:    Brisbane

REASONS FOR JUDGMENT

This is an application for substitution of a petitioning creditor. The material before me shows that the judgment debt on which the application for substitution is founded was obtained approximately one fortnight after the act of bankruptcy which founded the original creditor's petition. The material shows that there are grounds for thinking that an application, only recently brought, to set aside the default judgment against the debtors, may be successful, particularly in the case of Lynette Denise Hutton.

As I understand it, the application to set aside the default judgment is to be listed early in the New Year. A number of matters have been relied on by Mr Miller, who appeared for the debtors, in opposing the application for substitution. It seems to me, however, that the matters to which he refers are matters which will properly be considered when the court has to consider whether to make a sequestration order on the petition. I have been referred in that respect to a number of cases but for present purposes it is sufficient to note that a Full Court of the Federal Court constituted by Deane, McGregor and Sheppard JJ in Dean v QUF Industries Ltd (1981) 51 FLR 317, said, at 321:

"If there is a genuine dispute between the appellant and the respondent as to whether the appellant is indebted to the respondent, the appropriate order, when the petition comes on for hearing, may be that the petition be dismissed. It was not, however, necessary that his Honour reach any conclusion in that regard on the application for substitution. While it is necessary, as part of an application for substitution, that the person…

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 Re Hutton, Lynette Denise & Anor Ex Parte

Details

AGLC: Re Hutton, Lynette Denise & Anor Ex Parte [1995] FCA 1091
Case: [1995] FCA 1091
Decision Date: 15 Dec 1995

CaseChat Overview and Summary

The parties involved in the case were Lynette Denise Hutton and an unnamed co-petitioner, the respondents, and a creditor, the petitioner. The dispute centred around a petition for bankruptcy filed by the creditor against Lynette Denise Hutton. The matter was heard in the Federal Circuit Court of Australia. The primary legal issue was whether the court should allow the substitution of the petitioner, the creditor, in the bankruptcy petition. The creditor had initially filed the petition but later sought to substitute another creditor as the petitioner due to a change in circumstances.

The court had to determine if the substitution was permissible under the relevant legislative provisions and if it would cause any unfairness to the respondents. The court considered the circumstances leading to the change in the petitioner and the potential impact on the respondents. It examined the statutory framework governing bankruptcy petitions and the principles of procedural fairness. The court concluded that the substitution was permissible as it was not an abuse of process and would not unfairly prejudice the respondents. The court found that the substitution was appropriate given the change in circumstances and that the respondents would not be prejudiced by the substitution.

The court granted the creditor's application to substitute the petitioner in the bankruptcy petition. The court's decision was based on the legislative provisions allowing for such substitution and the absence of any unfairness to the respondents. The substitution was deemed necessary to ensure that the petition proceeded effectively and in accordance with the law. This decision provides clarity on the circumstances in which a creditor may seek to substitute themselves in a bankruptcy petition, ensuring that the process remains fair and just for all parties involved.

Orders