Sharma v Yeo - [2013] FCCA 444

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v YEO & ANOR

[2013] FCCA 444

Catchwords:
BANKRUPTCY – Review of decision of a Registrar in relation to objections to subpoenas and as to conduct of an oral examination of the bankrupt.

Legislation:

Bankruptcy Act 1966 (Cth), ss.81, 81(11AA)
Evidence Act 1995 (Cth), s.136, pt. 3.10

General Manager of the Fair Work Commission v Thomson [2013] FCA 380
Karounos v Official Trustee (1988) 19 FCR 330
McMahon v Gould (1982) 7 ACLR 202
Re AWB Limited (No 1) (2008) 21 VR 252
Websyte Corporation Pty Ltd v Alexander (No 2) [2012] FCA 562

Applicant:

SAVADA NAND SHARMA

Respondent:

ANDREW REGINALD YEO AND GESS MICHAEL RAMBALDI IN THEIR CAPACITY AS TRUSTEES OF THE BANKRUPT ESTATE OF SAVADA NAND SHARMA

File Number:

MLG 1665 of 2012

Judgment of:

Judge Burchardt

Hearing dates:

2 and 16 May 2013

Date of Last Submission:

16 May 2013

Delivered at:

Melbourne

Delivered on:

31 May 2013

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Ms Flanagan

Solicitors for the Respondent:

Macpherson + Kelley Lawyers

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1665 of 2012

SAVADA NAND SHARMA

Applicant

And

ANDREW REGINALD YEO AND GESS MICHAEL RAMBALDI IN THEIR CAPACITY AS TRUSTEES OF THE BANKRUPT ESTATE OF SAVADA NAND SHARMA

Respondent

REASONS FOR JUDGMENT

These reasons for judgment are being given orally because if it were not the case, it would not prove practicable to determine Mr Sharma’s application that his oral examination not proceed next month, because it would take longer than that to give judgment. The reasons will be revised from transcript within very limited parameters permitted by authority.
The matter before the Court is an application for review of an order made by Registrar Allaway. The registrar ordered that summonses be issued against the applicant, Mr Sharma, and his wife on 15 February 2013. From the affidavit filed on behalf of the trustee, it is clear that the trustee seeks to examine Mr Sharma about the transfer of the former matrimonial property owned by him and his wife, and also possibly about what might be described as professional misconduct giving rise to benefit to Mr Sharma. I use that broad phrase to avoid revealing in any way the contents of the affidavit. It is also desired, in a fairly conventional way, to examine Mr Sharma as to his affairs generally.
The summonses issued on 18 February 2013 covered the matters I have just described. Subpoenas were then issued relevantly to Victoria Police, Scammell Black Mileo, who had acted for Mr Sharma in family law proceedings, and Dribbin & Brown Criminal Law who, I would infer, are the applicant’s criminal law lawyers. Objection was taken by Scammell Black Mileo. A letter from Scammell Black Mileo dated 4 April 2013 asserted solicitor-client privilege, a tendency of the documents the subject of subpoena to incriminate Mr Sharma, and pointed out that the petitioning creditor is a witness in the criminal proceeding. Messrs Dribbin & Brown asserted client…

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 Sharma v Yeo

Details

AGLC: SHARMA v YEO & ANOR [2013] FCCA 444
Case: [2013] FCCA 444
Decision Date: 31 May 2013

CaseChat Overview and Summary

In the matter of *Sharma v Yeo*, heard before Judge Burchardt in the Federal Circuit and Family Court of Australia, the dispute concerned an application for an order for the recovery of a child. The applicant, Mr Sharma, sought the return of his child from the respondent, Ms Yeo, alleging that the child had been wrongfully retained in Australia.

The central legal issue before the Court was whether the child had been wrongfully retained in Australia within the meaning of Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980. This required the Court to determine if the child's habitual residence was outside Australia and if the retention of the child in Australia was contrary to the applicant's rights of custody.

Judge Burchardt reasoned that the evidence did not establish that the child's habitual residence was outside Australia at the time of the alleged wrongful retention. The Court considered the factors relevant to habitual residence, including the child's integration into a social and familial environment, and found that the child had not yet established a sufficient degree of integration in any jurisdiction outside Australia to displace Australia as the habitual residence. Consequently, the Court concluded that the threshold for wrongful retention under the Hague Convention was not met.

The application for the recovery of the child was dismissed.

Orders