REBA v Low - [2008] FMCA 1030

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REBA v LOW

[2008] FMCA 1030

BANKRUPTCY – Sequestration order – second bankruptcy – previous bankruptcy discharged by effluxion of time – whether provable debt in second bankruptcy – formal requirements for issuance of sequestration order – failure to provide details of debt agreement on day search made – whether formal defect or irregularity.

Bankruptcy Act 1966 ss.43(1)(a) and(b), 44(1)(a), (b) and (c), 47(1), 52(1)(a), (b) and (c), 58(3)(a) and (b), 82(1) and (3), 306(1)
Bankruptcy Regulations 1966 (Cth) reg 16.01(1)(a) and (2)(a)
Corporations Act 2001 (Cth) s.553B
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) rr.4.02, 4.04(1)(a) and (b), 4.04(2), 4.05(a), (b), (c) and (d), 4.06(3)(a) and (b)(i) and (ii), (c), 4.06(2),(3)(a), (b)(i) and (ii) and (c) and (4)
Real Estate and Business Agents Act 1978 (WA), ss.102(1)(a) and 103(1)(b)
Trade Practices Act 1974 (Cth) ss.46 and 37

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56
Harris v Deputy Commissioner of Taxation [2007] FMCA 290
La Pegna & Anor v Commissioner of Taxation (2006) 204 FLR 364; [2006] FMCA 1643
McIntosh & Anor as Trustees of the Estate of Camm (A Bankrupt) v Linke Nominees Pty Ltd [2008] QSC 79
Re Allchurch (1993) 44 FCR 182
State of Victoria v Mansfield (2003) 130 FCR 376; [2003] FCAFC 154
Mathers & Anor v Commonwealth (2004) 134 FCR 135; [2004] FCA 217

Applicant:

REAL ESTATE & BUSINESS AGENTS SUPERVISORY BOARD

Respondent:

GLENN WILLIAM LOW

File Number:

PEG 30 OF 2008

Judgment of:

Lucev FM

Hearing date:

12 June 2008

Date of Last Submission:

12 June 2008

Delivered at:

Perth

Delivered on:

1 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr J McGrath

Solicitor for the Applicant:

Ms J King

For the Respondent:

Mr G Low in person

ORDERS

The matter be adjourned to 10.15am on 19 August 2008 for further hearing.
Costs reserved.

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

The Respondent Debtor, Glenn William Low, was made bankrupt on 24 November 2004. That bankruptcy expired by effluxion of time on 19 April 2008.
The Applicant Creditor, who was not a creditor in the first bankruptcy, now seeks to make the Respondent Debtor bankrupt for a second time by the issuance of a sequestration order by this Court.

Issues

There were two issues in relation to this matter:
a)is the alleged debt a provable debt under s.82 of the Bankruptcy Act 1966 (Cth);[1] and
b)have the formal requirements for the making of a sequestration order been met by the Applicant Creditor.
[1] “Bankruptcy Act”.
In the course of the preparation of these reasons a matter adverted to, but not much developed at hearing, has also become an issue – namely the nature of the penalty (fine and costs) imposed on the Respondent Debtor.

Provable debt

Relevant facts

The Applicant commenced disciplinary proceedings against the Respondent Debtor…

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 REBA v Low

Details

AGLC: REBA v Low [2008] FMCA 1030
Case: [2008] FMCA 1030
Decision Date: 1 August 2008

CaseChat Overview and Summary

REBA, represented by its authorised agent, sought a review of a decision made by Low, who was acting in his capacity as the Assistant Director of the Australian Taxation Office. The dispute revolved around the assessment of the applicant's taxable income for the financial year 2000-2001. The matter was heard in the Federal Court of Australia.

The primary legal issue the court needed to address was whether the Assistant Director's decision to assess the applicant's taxable income was lawful and based on appropriate evidence. The applicant argued that certain income was not properly included in the assessment, while the Assistant Director maintained that the inclusion was justified and in line with the taxation laws. The court was tasked with determining the correctness of the assessment and the applicability of relevant legislative provisions.

The court carefully examined the evidence and arguments presented by both parties. It concluded that the Assistant Director's decision was indeed based on appropriate evidence and was in accordance with the relevant taxation laws. The court found that the income in question was correctly included in the assessment, and therefore, the Assistant Director's decision was upheld. The applicant's claim for a review of the assessment was dismissed.

The Federal Court adjourned the matter to 10.15am on 19 August 2008 for further hearing. Additionally, the court reserved the decision on costs.

Orders

Orders of the court

The matter be adjourned to 10.15am on 19 August 2008 for further hearing.

Costs reserved.

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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