Richard Busuttil and Co Pty Ltd v Flint - [2013] FCA 575

FEDERAL COURT OF AUSTRALIA
Richard Busuttil & Co Pty Ltd v Flint; In the Matter of Flint [2013] FCA 575

Citation: Richard Busuttil & Co Pty Ltd v Flint; In the Matter of Flint [2013] FCA 575

Parties: RICHARD BUSUTTIL & CO PTY LTD (ACN 119 057 591) v DENISE CHARLENE FLINT; IN THE MATTER OF DENISE CHARLENE FLINT

File number: ACD 6 of 2013

Judge: FOSTER J

Date of judgment: 7 June 2013

Catchwords: BANKRUPTCY – whether Creditor’s Petition was heard in open court – whether Federal Magistrate has power to extend life of Creditor’s Petition retrospectively by invoking the slip rule and thereby overcome the effect of s 52(5) of the Bankruptcy Act 1966 (Cth) – whether a judgment or order was made by the Federal Magistrate thereby attracting the operation of the slip rule

Legislation: Bankruptcy Act 1966 (Cth), s 52(5) and s 306
Federal Court (Bankruptcy) Rules 2005, r 2.06

Cases cited: Flint v Richard Busuttil & Co Pty Limited [2013] FCA 258 related
Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 cited
Gikas v Papanayiotou [1977] 2 NSWLR 944 cited
Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554 applied

Date of hearing: 6 and 7 June 2013

Place: Canberra

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 38

Counsel for the Applicant: Mr WL Sharwood

Solicitor for the Applicant: Rod J Barnett & Associates Pty Ltd

Solicitor Advocate for the Respondent: Ms L Kennedy of Leonie Kennedy & Associates

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 6 of 2013

IN THE MATTER OF DENISE CHARLENE FLINT

BETWEEN:
RICHARD BUSUTTIL & CO PTY LTD (ACN 119 057 591)
Applicant

AND:
DENISE CHARLENE FLINT
Respondent

JUDGE:

FOSTER J

DATE OF ORDER:

7 JUNE 2013

WHERE MADE:

CANBERRA

THE COURT ORDERS THAT:
1.Leave be granted to the applicant to file in Court two affidavits of Rodney John Barnett, both affirmed on 6 June 2013.
2.A sequestration order be made against the estate of Denise Charlene Flint.
3.Frank Lo Pilato be appointed as trustee of the bankrupt estate of Denise Charlene Flint.
4.The applicant creditor’s costs of the Petition be taxed and paid out of the estate of the respondent debtor, Denise Charlene Flint, in accordance with the Bankruptcy Act 1966 (Cth).

THE COURT NOTES THAT:
5.The date of the act of bankruptcy is 27 October 2011 and the act of bankruptcy is non-compliance with Bankruptcy Notice No 1479 of 2011 issued on 3 March 2011 and served on 4 April 2011 the time for compliance with which was extended to 26 October 2011 by order of the Federal Magistrates Court of Australia.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

ACD 6 of 2013

IN THE MATTER OF DENISE CHARLENE FLINT

BETWEEN:
RICHARD BUSUTTIL & CO PTY LTD (ACN 119 057…

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: [2013] FCA 575
Decision Date

CaseChat Overview and Summary

Richard Busuttil & Co Pty Ltd v Flint [2013] FCA 575 involved a creditor's petition filed in the Federal Magistrates Court of Australia. The applicant, Richard Busuttil & Co Pty Ltd, sought a sequestration order against Denise Charlene Flint based on non-compliance with a bankruptcy notice. The respondent opposed the petition on two grounds: first, that the Federal Magistrate lacked the power to extend the life of the petition retrospectively using the slip rule; and second, that the petition had not been heard in open court as required. The court rejected both contentions. It held that the Federal Magistrate did have the power to extend the petition's life using the slip rule in appropriate circumstances, as clarified by the Full Court decision in Griffiths v Boral Resources (Qld) Pty Ltd. The court also found that the petition had indeed been heard in open court. The court ultimately granted the applicant's relief, ordering a sequestration against the respondent's estate and appointing a trustee. It also ordered that the applicant's costs be paid from the respondent's estate in accordance with the Bankruptcy Act.

Orders