Sawford Voll Lawyers v Buckley
[2009] FMCA 1278
•4 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAWFORD VOLL LAWYERS v BUCKLEY | [2009] FMCA 1278 |
| BANKRUPTCY – Creditor’s petition – grounds of opposition – adjournment to permit further evidence. |
| Bankruptcy Act 1966, s.52 |
| Applicant: | SAWFORD VOLL LAWYERS (A FIRM) |
| Respondent: | LINDA BUCKLEY |
| File Number: | BRG 725 of 2009 |
| Judgment of: | Wilson FM |
| Hearing date: | 4 December 2009 |
| Date of Last Submission: | 4 December 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 4 December 2009 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Sawford Voll Lawyers |
| Counsel for the Respondent: | N/A |
| The Respondent in person: | Ms Buckley |
ORDERS
That the hearing of the Creditor’s Petition be adjourned to 10:00am on 18 December 2009.
That any further affidavit evidence to be relied upon by the applicant be filed and served on the respondent by 4:00pm on 14 December 2009.
That each party advise the other in writing by 4:00pm on 15 December 2009 of which witnesses if any are required for cross examination at the hearing of the Creditor’s Petition.
That each parties’ costs of and incidental to the adjournment today are reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 725 of 2009
| SAWFORD VOLL LAWYERS (A FIRM) |
Applicant
And
| LINDA BUCKLEY |
Respondent
REASONS FOR JUDGMENT
The applicant seeks a sequestration order against the estate of the respondent. On 1 May 2009 the applicant obtained judgment in the Magistrates’ Court for $9931.57 for outstanding legal fees and costs. Interest accrues on that sum. The judgment has not been satisfied. A bankruptcy notice was served on 26 June 2009 and was not complied with. A creditor’s petition was filed on 15 October 2009. The respondent filed a notice of opposition, alleging that the applicant has been paid and that there are other legal deficiencies in the applicant’s case. The fact remains that the applicant has a judgment in its favour which remains unsatisfied.
The court does, however, have the power under s.52 of the Bankruptcy Act1966 to make or not make a sequestration order, and in making its decision can have regard to the fact as to whether there is a genuine dispute as to the validity of the underlying judgment. The court also retains the power under s.52(2)(b) of the Act to decline to make a sequestration order for “other sufficient cause”.
In this case the respondent alleges, it seems from her material, three things. First, that the applicant solicitor’s retainer was terminated in September 2004 and, accordingly, he is not entitled to charge for work performed subsequent to that date. It is evident from the assessment that was carried out by Mr Ryan, a cost consultant, that the assessment includes charges for work carried out up until November 2004. It was this assessment that led to the legal proceedings against the respondent in the State Court.
Secondly, the respondent argues that she has, in fact, paid moneys to the applicant that have not been taken into account. Thirdly, the respondent alleges that the applicant carried out work or charged for work that was not performed or was unnecessary.
A further argument raised by the respondent; namely, that the applicant was not entitled to seek a second costs assessment without applying to the court for permission to do so, does not seem to me to have any prospects of success, having regard to the documents that form exhibit 1 before me today. It seems that after an account was rendered by the applicant, the respondent requested an assessment of those costs, as she was then entitled to do. Mr Fred Monsour was appointed, but because the parties did not lodge security for his costs, he declined to act further. He asked that another costs assessor be appointed.
Mr Ryan was then appointed on 12 October 2005. It seems to me that only one costs assessment has been carried out. The respondent’s real complaint is that she did not have the opportunity to take part or provide information in that assessment process. Whether or not she was entitled to be involved is, of course, an argument for another day. The points raised by the respondent, it seems to me, require a response from both Mr Sawford and Mr Ryan. It is only when the evidence of the protagonists is weighed and a determination made of the factual issues raised that the court can be in a position to judge whether there is, in fact, a genuine dispute as to the correctness of the underlying judgment.
Accordingly, it seems to me that the better course is not to make a final determination on the creditor’s petition today, but rather to afford the applicant the opportunity to put on that further evidence. The applicant’s solicitor says that it can be done relatively quickly. The matter can be allocated a further hearing date this year, on 18 December. The applicant should file any further affidavit material on which it intends to rely by 14 December. The parties should then advise each other of which witnesses, if any, are required for cross-examination by 4 pm on 15 December. The matter will proceed, as I have said, on 18 December.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 17 December 2009
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