Shannon and Middleton v King - [2005] FMCA 1264

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHANNON & MIDDLETON v KING

[2005] FMCA 1264

BANKRUPTCY – Bankruptcy notice – claim that bankruptcy notice invalid – where bankruptcy notice not strictly in accordance with the form prescribed by the Bankruptcy Regulations – where the expression “the creditor(s)” used in place of the expression “the creditor” – whether bankruptcy notice defective or irregular – whether defect or irregularity is substantive or formal – defect or irregularity held to be formal only – whether defect or irregularity has occasioned substantial and/or irremediable injustice – discussion of principles in Kleinwort Benson Australia Ltdv Crowl (1998) 165 CLR 71 and the The Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 – Bankruptcy Act 1966 (Cth) ss.40(1)(g), 41(1), 41(2), 306(1) – Bankruptcy Regulations 1996 (Cth) Regulation 4.02.

Bankruptcy Act 1966 (Cth)
Acts Interpretation Act 1901 (Cth)
Supreme Court Act 1986 (Vic)
Magistrates Court Act 1989 (Vic)

Kleinwort Benson Australia Ltd v Crowl (1998) 165 CLR 71
The Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Deputy Commissioner of Taxation v Woodhams (2000) 199 CLR 370
Re St Leon; Ex parte National Australia Bank Ltd (1994) 54 FCR 371
Hanlon v Law Society [1981] AC 124
Marshall v General Motors Acceptance Corporation Australia (2003) 199 ALR 109
Adams v Lambert (2004) FCAFC 322
Wright v Australian and New Zealand Banking Group Limited (2001) FCA 386
Trustees of the Franciscan Missionaries of Mary v Weir (2000) FCA 574
Kyriackou v Shield Mercantile Pty Ltd (2004) 207 ALR 363
Re Hamor; Ex Parte Deamer (1968) 11 FLR 261
McIntyre v Gye (1994) 51 FCR 472

Applicants

NATALIE JANE SHANNON &
KAREN CHRISTINE MIDDLETON

Respondent:

BARRIE PETER KING

File Number:

PEG 63 of 2005

Judgment of:

Walters FM

Hearing date:

30 June 2005

Date of Last Submission:

30 June 2005

Delivered at:

Melbourne (via video link to Perth)

Delivered on:

5 September 2005

REPRESENTATION

Counsel for the Applicants

Mr Cuerden

Solicitors for the Applicants

Dwyer Durack

Counsel for the Respondent:

Mr Nalder

Solicitors for the Respondent:

Gadens Lawyers

ORDERS

A sequestration order be made against the estate of Barrie Peter King (“the Respondent Debtor”) of 27 Quincy Loop, Iluka, Western Australia.
The Applicants’ costs of the petition (including any reserved costs) be paid in priority from the assets of the Respondent Debtor as costs of the petition pursuant to s.109 of the Bankruptcy Act (Cth).

The Court notes the date of the Act of Bankruptcy is 25 February 2005

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

PEG 63 OF 2005

NATALIE JANE SHANNON

First Applicant

And

KAREN CHRISTINE MIDDLETON

Second Applicant

And

BARRIE PETER KING

Respondent

REASONS FOR JUDGMENT

Introduction

This court has been asked to determine whether the use of the expression “creditor(s)” instead of the word “creditor” is sufficient to render invalid a bankruptcy notice that is otherwise entirely unexceptionable. Whilst some might fairly consider the resolution…

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.

Keep reading for free

Create a free CaseChat account to read Shannon and Middleton v King and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] FMCA 1264
Decision Date: 5 September 2005

CaseChat Overview and Summary

The case of Shannon and Middleton v King involved two applicants, Shannon and Middleton, who sought a sequestration order against the estate of Barrie Peter King, the Respondent Debtor. The dispute pertained to King's financial obligations and the inability to satisfy his debts, leading the applicants to petition for his sequestration under the Bankruptcy Act (Cth). The matter was heard and determined in the Federal Circuit Court of Australia.

The legal issues central to the case required the court to ascertain whether the conditions for issuing a sequestration order were satisfied. This involved determining whether the Respondent Debtor was bankrupt, as defined under the Bankruptcy Act, and whether the applicants had provided sufficient evidence to support the petition. The primary question was whether King's financial situation warranted the sequestration of his estate to enable the fair distribution of his assets among his creditors.

In rendering its decision, the court meticulously examined the evidence presented by the applicants, which demonstrated that King's debts significantly exceeded his available assets. The court held that the applicants had fulfilled their burden of proving the Respondent Debtor's bankruptcy, as defined by the Act. The court was satisfied that the act of bankruptcy, dated 25 February 2005, was valid and that the applicants had demonstrated the necessary grounds for the sequestration order. Consequently, the court granted the order, allowing the applicants' costs to be paid in priority from the Respondent Debtor’s assets.

Orders

Orders of the court

A sequestration order be made against the estate of Barrie Peter King (“the Respondent Debtor”) of 27 Quincy Loop, Iluka, Western Australia.

The Applicants’ costs of the petition (including any reserved costs) be paid in priority from the assets of the Respondent Debtor as costs of the petition pursuant to s.109 of the Bankruptcy Act (Cth).

The Court notes the date of the Act of Bankruptcy is 25 February 2005

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.