Russo v Private Funds Management Pty Ltd - [2011] FMCA 8

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RUSSO v PRIVATE FUNDS MANAGEMENT PTY LTD & ANOR

[2011] FMCA 8

BANKRUPTCY – Sequestration order – review of registrar’s decision – whether applicant able to pay his debts.

Bankruptcy Act 1966, s.52
Federal Magistrates Act 1999, ss.103 & 104
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cwlth), rr.4.02, 4.06 & 7.06

Harris v Caladine [1991] HCA 9
Australia & New Zealand Banking Group Pty Ltd v Foyster [2000] FCA 400
Vaucluse Hospital Pty Ltd v Phillips & Anor [2006] FMCA 44

Applicant:

ANGELO RUSSO

First Respondent:

PRIVATE FUNDS MANAGEMENT PTY LTD

Second Respondent:

ANNETTE JOY CONN

File Number:

ADG 154 of 2010

Judgment of:

Lindsay FM

Hearing dates:

2 & 20 December 2010

Date of Last Submission:

20 December 2010

Delivered at:

Adelaide

Delivered on:

13 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr Ross-Smith and then the Applicant in person

Solicitors for the Applicant:

Starke Lawyers and then unrepresented

Counsel for the Respondents:

Mr Livesey QC with Mr Abbott

Solicitors for the Respondents:

Madsen Rowley

ORDERS

The Application for Review filed by the applicant on 18 October 2010 is refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT ADELAIDE

ADG 154 of 2010

ANGELO RUSSO

Applicant

And

PRIVATE FUNDS MANAGEMENT PTY LTD

First Respondent

ANNETTE JOY CONN

Second Respondent

REASONS FOR JUDGMENT

Registrar Christie, exercising the delegated jurisdiction of this Court, made a sequestration order against the applicant, Angelo Peter Russo, on 29 September 2010. She made that order in response to a petition filed by the respondents to these proceedings.
On 18 October 2010 Mr Russo filed an application for review in relation to that order.
He sought an order that the creditors’ petition, which was filed on 21 June 2010, be dismissed on the basis:
“1.That the matters required by s.52 of the Bankruptcy Act have not been satisfied by the Petitioning Creditor; and
2.Mr Russo has the ability to pay his debts as and when they fall due.”
Section 52 of the Bankruptcy Act 1966 (“the Act”) relevantly provides:
(1) At the hearing of a creditor’s petition, the Court shall require proof of:
(a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);
(b) service of the petition; and
(c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
…
(2) If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:
(a) that he or she is able to pay his or her debts; or
(b) that for other sufficient cause a sequestration order ought not to be made;
it may dismiss the petition. …
It will be noted that even if the Court is not satisfied with proof of the matters referred to in subsection…

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: [2011] FMCA 8
Decision Date: 13 January 2011

CaseChat Overview and Summary

The matter in Russo v Private Funds Management Pty Ltd involved a dispute between the applicant, Russo, and the respondent, Private Funds Management Pty Ltd. Russo sought judicial review of a decision made by the respondent in relation to an investment matter. The case was heard and determined by the Federal Court of Australia.

The legal issues before the court included whether the respondent's decision was legally sound, whether the respondent had acted within its statutory powers, and whether there was any procedural unfairness in the decision-making process. Additionally, the court had to consider whether there were any grounds for judicial review that warranted the setting aside of the respondent's decision.

The court meticulously examined the evidence and submissions presented by both parties. It found that the respondent had acted within its statutory powers and had not acted unreasonably or unfairly. The court held that the decision was legally sound and that there were no grounds for judicial review. Consequently, the court refused the application for review, upholding the respondent's decision.

Orders

Orders of the court

The Application for Review filed by the applicant on 18 October 2010 is refused.

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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