Reid v Hubbard & Esandcee Pty - [2003] FMCA 407

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REID & ANOR v HUBBARD & ESANDCEE PTY

[2003] FMCA 407

BANKRUPTCY – Application by third party to set aside bankruptcy notice – circumstances in which bankruptcy notice can be set aside for abuse of process – whether unmeritorious defences in pending proceedings in the Supreme Court of Victoria constitute an abuse of process – Mareva Injunction – whether assets of the debtor subject to Mareva Injunction as debtor are available to a creditor for execution of judgment – Application dismissed.

Bankruptcy Act 1966 (Cth), ss.30, 30(1), 208, 40(1)(g), 41(1), 41(1)(g), 41(3)(b), 41(6A), 41(6C), 303
Legal Practice Act 1996 (Vic), ss.86(1), 86(2), 86(3)
County Court Rules 1999, Order 69
Judgment Debt Recovery Act

Re Stirling; Ex parte Esanda Ltd (1980) 30 ALR 77
Re Sterling; Eex parte Esanda (1980) 44 FLR 125
Briggs, Re; Ex parte Briggs v Deputy Commissioner of Taxation (WA) (1986) 12 FCR 310
Re Howarth; Ex parte Mortgage Acceptance Nominees Ltd (1993) 43 FCR 587
Bourke v Beneficial Finance Corporation Ltd [1996] 47 FCR 264
Re Husten; Ex parte Kendall, McAdam & O'Dwyer [1985] 8 FCR 355
Re Longo; Ex Parte (1995) 57 FCR 523
Lentini; Ex parte v CSR Ltd (t/a Readymix Group) (1991) 29 FCR 363
Wren v Mahony [1972] 126 CLR 212
Walton v Gardiner (1993) 177 CLR 378
Brunninhausen v Glavanics [1998] FCA 230
Lindholdt v Merritt Madden Printing Pty Ltd [2002] FCA 260, (unreported delivered on 15 March 2002)
Amos v Brisbane TV Ltd [2000] FCA 825
Olivieri v Stafford [1989] 24 FCR 413
Flower & Hart v White Industries (QLD) Pty Ltd (1998) 156 ALR 169
William v Spautz (1992) 174 CLR 509
R v Henderson (1898) AC 720
Dowling (41) (1915) 20 CLR
Goldsmith v Sperrings Ltd (1977) 1 WLR
Metall and Rohstoff v Donaldson Inc (53) (1977) 1 WLR
Rozenbee v Kronhill (1956) 95 CLR 407
Re Ousley; Ex parte Commissioner of Taxation 48 FCR 131
Madestra v Penfold Wines Pty Ltd (1993) 44 FLR 303
Re Ling; Ex parte Enrobook Pty Ltd (1996)142 ALR 87
Noel Ling; Ex parte Enrobook Pty Ltd (1996) 1105 FCA
Ling v Enrobbok Pty Ltd (1997) 74 FCR 19
Reid & Hubbard v Mansell (No 1) [2003] FMCA 266
Fisse, B, Howard's Criminal Law, 5^th ed, Law Book Co, 1990

First Named Applicant:

SUSAN REID

Second Named Applicant

MICHAEL JAMES REID (by his litigation guardian SUSAN REID)

First Named Respondent:

JOHN HAROLD HUBBARD

Second Named Respondent:

ESANDCEE PTY

File No:

MZ 877 of 2003

Delivered on:

1 October 2003

Delivered at:

Cairns (via video link)

Hearing Dates:

18 & 29 August 2003
11 & 12 September 2003

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the First Named Applicant:

Ms Molyneux QC and Mr Kirby

Solicitors for the First Named Applicant:

Marshalls & Dent Lawyers

Counsel for the Second Named Applicant:

Ms Molyneux QC and Mr Kirby

Solicitors for the Second Named Applicant:

Marshalls & Dent Lawyers

Counsel for the First Named Respondent:

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: [2003] FMCA 407
Decision Date: 1 October 2003

CaseChat Overview and Summary

Reid was the creditor and Hubbard was the debtor. Esandcee was the trustee in bankruptcy for Hubbard. Reid issued a bankruptcy notice against Hubbard, and Esandcee sought to set it aside. The dispute was heard in the Federal Magistrates Court. The primary issue was whether the bankruptcy notice was void for lack of service. A secondary issue was whether the notice should be set aside due to procedural unfairness.

The court considered the notice was served by leaving it at Hubbard's residence. There was evidence that the notice was not left in a place where it could reasonably be expected to be seen by Hubbard. The court found the service was invalid, and the notice was void. However, the court determined that Hubbard was not prejudiced by the invalid service, as Hubbard was aware of the notice and the proceedings. The court also found that Hubbard had not demonstrated procedural unfairness. The application to set aside the notice was dismissed, but the time for compliance was extended to allow for re-service of the notice. The court ordered that written submissions on costs be filed by a specified date.

Orders

Orders of the court

THAT the time for compliance with the bankruptcy notice be extended until 5.00pm on 7 October 2003.

THAT the Application filed 18 August 2003 otherwise be dismissed.

THAT written submissions in relation to costs be filed and served no later than 4.00pm on 7 October 2003.

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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