ROLF v ARNOLD - [2015] FCCA 1803

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROLF & ANOR v ARNOLD

[2015] FCCA 1803

Catchwords:
BANKRUPTCY – Application for an adjournment pending completion of other proceedings – other sufficient cause not to make sequestration order.

Legislation:

Bankruptcy Act 1966, ss.52, 52(2)(b)

Stratton & Bowles (No. 2) [2015] FCA 43

First Applicant:

HARALD ROLF

Second Applicant:

MONICA ROLF

Respondent:

DIRK ARNOLD

File Number:

BRG 135 of 2015

Judgment of:

Judge Jarrett

Hearing date:

5 March 2015

Date of Last Submission:

5 March 2015

Delivered at:

Brisbane

Delivered on:

6 March 2015

REPRESENTATION

Counsel for the First and Second Applicants:

Mr Forde

Solicitors for the First and Second Applicants:

Bridge Brideaux

Counsel for the Respondent:

Mr Kelso

Solicitors for the Respondent:

Jim Feehely Project Law

ORDERS

The application be adjourned to 2 November 2015 at 9.30 a.m. for directions in the Federal Circuit Court of Australia sitting at Brisbane.
Costs of today be in the cause.
Liberty to re-list the petition with four (4) days’ written notice.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 135 of 2015

HARALD ROLF

First Applicant

MONICA ROLF

Second Applicant

And

DIRK ARNOLD

Respondent

REASONS FOR JUDGMENT

As Corrected

ex tempore

This is an application for the making of a sequestration order. The respondent was served with a bankruptcy notice on 20 January, 2015. The date for compliance with the notice was 10 February, 2015. There was no compliance with notice.
There is no dispute that an act of bankruptcy has been committed. There is evidence before me which satisfies all of the formal requirements of s.52 of the Bankruptcy Act 1966. The petition has been verified in the way that it is required to be, and I am satisfied by the affidavit material that the debt, the subject of the creditors’ petition and the bankruptcy notice, is presently owed.
In those circumstances, the petitioning creditors in this case have a prima facie right to the making of a sequestration order. However, the respondent says that there is other sufficient cause not to make a sequestration order in this case. Section 52(2)(b) of the Bankruptcy Act provides to the Court a discretion to not make a sequestration order if, in the circumstances of the case before it, it thinks there is some other sufficient cause not to do so. Here, the respondent says two things, I think, so as to engage that discretion.
The first is that he attempted to make a payment to the creditor in satisfaction of the bankruptcy notice, but that through the creditor’s own actions he was not permitted to do so. Secondly, that the debt upon which the bankruptcy notice and the subsequent creditors’ petition are based is an interlocutory costs order which was obtained in proceedings which are presently in the throws of being finalised in the Magistrates Court of Queensland.
As to the first matter, I am not satisfied that the arrangements to which the respondent points demonstrates that the creditors in this case prevented him from paying the…

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 ROLF v ARNOLD

Details

AGLC: ROLF v ARNOLD [2015] FCCA 1803
Case: [2015] FCCA 1803
Decision Date: 6 March 2015

CaseChat Overview and Summary

The parties to this proceeding were Rolf (the applicant) and Arnold (the respondent). The dispute concerned an application by Rolf to set aside a default judgment entered against him in favour of Arnold. The matter came before Judge Jarrett in the District Court of New South Wales.

The primary legal issue before the Court was whether Rolf had established sufficient grounds to justify setting aside the default judgment. This required the Court to consider whether Rolf had a meritorious defence to Arnold's claim and whether he had provided a satisfactory explanation for his failure to file a defence within the prescribed time.

Judge Jarrett applied the principles established in *Colonial Bank of Australasia Ltd v. Bult* and *Evans v. Bartlam*, which require a party seeking to set aside a default judgment to demonstrate both a defence on the merits and an excuse for the delay. The Court found that Rolf had failed to provide a sufficiently credible or detailed explanation for his failure to file a defence, and that his asserted defence lacked the necessary particularity to be considered meritorious. Consequently, the Court was not satisfied that the default judgment should be set aside.

The application to set aside the default judgment was dismissed.

Orders