FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROBERTSON v URE & ANOR | [2013] FCCA 812 |
| Catchwords: BANKRUPTCY – Annulment – application for annulment of bankruptcy – grounds for annulment – sequestration order – whether sequestration order ought not to have been made – whether Applicant was solvent on the Date of Bankruptcy – exercise of Court’s discretion – whether Applicant deprived of the opportunity to adduce further evidence as to her solvency – whether Applicant deprived of natural justice – whether proceedings should have been adjourned to allow Applicant to produce further evidence. |
| Legislation: Evidence Act 1995 (Cth) ss.64, 67, 190 |
| Applicant: | PATRICIA JUNE ROBERTSON |
| First Respondent: | LYNN KATHLEEN URE |
| Second Respondent: | GREGORY MICHAEL MALONEY |
| File Number: | BRG 94 of 2012 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 18 May 2012 |
| Date of Last Submission: | 18 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sheahan |
| Solicitors for the Applicant: | McCormick Lawyers |
| Counsel for the First Respondent: | Mr Amerena |
| Solicitors for the First Respondent: | Callaghan Lawyers |
| Counsel for the Second Respondent: | Mr Jardine |
| Solicitors for the Second Respondent: | Hopgood Ganim Lawyers |
ORDERS
The sequestration order made on 30 September 2011 and amended on 5 October 2011 against the estate of Patricia June Robertson is annulled as provided by section 153B(1) of the Bankruptcy Act 1966 (Cth).
Any party seeking an Order for costs must file and serve an affidavit setting out the amount of costs sought and the basis upon which those costs are calculated within twenty-eight (28) days and any affidavit in opposition to such Order sought must be filed and served within a further fourteen (14) days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 94 of 2012
| PATRICIA JUNE ROBERTSON |
Applicant
And
| LYNN KATHLEEN URE |
First…
Continue reading Robertson v Ure
Sign in free to access the full text
Details
- AGLC
- ROBERTSON v URE & ANOR [2013] FCCA 812
- Case
- [2013] FCCA 812
- Decision Date
CaseChat Overview and Summary
In *Robertson v Ure*, heard by Judge Scarlett, the applicant sought to challenge a decision that had significant consequences, potentially leading to bankruptcy. The core of the dispute revolved around the exclusion of evidence relating to the applicant's solvency at the time of the proceedings. The applicant argued that this evidence was crucial for her defence and that its exclusion, particularly at the stage of judgment delivery, prevented her from adequately presenting her case.
The legal issues before the court were whether the applicant had been afforded a reasonable opportunity to adduce evidence of her solvency, and whether the court had erred in striking out the relevant paragraph of her affidavit without providing an opportunity for further evidence to be presented. The applicant contended that the quasi-penal nature of bankruptcy proceedings necessitated a more lenient approach to procedural matters, including the admission of evidence and the granting of adjournments.
Judge Scarlett considered the applicant's submissions that the striking out of evidence concerning solvency, especially at the time of judgment, deprived her of a fair opportunity to present her case. The court noted that even if an objection to evidence was conceded, the court retained a discretion to admit it, referencing provisions of the *Evidence Act 1995* (Cth). The applicant argued that the proper course would have been to stand the matter down or adjourn the application to allow for further affidavit material or oral evidence on the critical issue of solvency. Reliance was placed on *Sullivan v Department of Transport* and *Deputy Commissioner of Taxation v Khorram*, which supported the proposition that a refusal to grant an adjournment, or the failure to offer one, could constitute a failure to allow a party to adequately present their case, particularly in matters with serious consequences.
The legal issues before the court were whether the applicant had been afforded a reasonable opportunity to adduce evidence of her solvency, and whether the court had erred in striking out the relevant paragraph of her affidavit without providing an opportunity for further evidence to be presented. The applicant contended that the quasi-penal nature of bankruptcy proceedings necessitated a more lenient approach to procedural matters, including the admission of evidence and the granting of adjournments.
Judge Scarlett considered the applicant's submissions that the striking out of evidence concerning solvency, especially at the time of judgment, deprived her of a fair opportunity to present her case. The court noted that even if an objection to evidence was conceded, the court retained a discretion to admit it, referencing provisions of the *Evidence Act 1995* (Cth). The applicant argued that the proper course would have been to stand the matter down or adjourn the application to allow for further affidavit material or oral evidence on the critical issue of solvency. Reliance was placed on *Sullivan v Department of Transport* and *Deputy Commissioner of Taxation v Khorram*, which supported the proposition that a refusal to grant an adjournment, or the failure to offer one, could constitute a failure to allow a party to adequately present their case, particularly in matters with serious consequences.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Mr Sheahan submitted at paragraphs [40] to [44]:40.Irrespective of whether or not the objection was conceded, by the manner in which the evidence was disposed of, effectively in the reasons for judgment, the applicant was not afforded an opportunity to adduce further evidence as to solvency which existed at the time and could have been obtained. That evidence would have established the solvency of the applicant.41.The fact that an objection is conceded does not automatically result in the evidence being rejected. The court retains a discretion to permit evidence which might otherwise be hearsay; see for example s. 190(3) of the Evidence Act 1995 (Cth); see also ss. 64(2) and 67(4) of the Evidence Act 1995 (Cth). 42.Upon the striking out of paragraph 24 of the affidavit, it is submitted the proper course, given the quasi-penal consequence of bankruptcy,[32] would have been to provide the applicant with an opportunity to adduce further evidence. This could have been achieved simply by:(a)standing the matter down to allow further affidavit material to be obtained or oral evidence to be adduced; or(b)adjourning the application to permit further admissible evidence on the fundamental issue of the applicant’s solvency. 43.It is submitted that, by the striking out of the paragraph effectively at the time of delivery of judgment, the applicant was not given a reasonable opportunity of adducing evidence on the issue of her solvency.44.The fact that an adjournment was not sought on the making of the objection, or indeed even if the objection was conceded or ruled upon at the hearing, is not determinative against the applicant.[33] [32] Ahern v Deputy commissioner of Taxation (unreported, Beaumont J, 18 October 1984) cited in Mani v Burness [2010] FCA 1132 at [22][33] Applicant’s Outline of Submissions at paragraphs [40]-[44] Counsel for the Applicant relied on the decision in Sullivan v Department of Transport[34] where Deane J said at 343:A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case…No such application for an adjournment was, however, made. If it had been, it is highly probable that the Tribunal would have acceded to it; indeed counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment… [34] (19878) 20 ALR 323; 1 ALD 383 Counsel for the Applicant referred the Court to the decision in Deputy Commissioner of Taxation v Khorram[35] where Lloyd-Jones FM[36] where granted the respondent to a creditor’s petition an adjournment to allow for the sale of the respondent’s and her husband’s home to allow her to obtain the benefit of her share of the sale to meet the demands of her creditors.[35] [2010] FMCA 554[36] As his Honour then was
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.