Silberman v Citigroup Pty Ltd

Case [2011] FMCA 860

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SILBERMAN v CITIGROUP PTY LTD [2011] FMCA 860
BANKRUPTCY – Application for a review of a Registrar’s decision dismissing application for extension of time for compliance with a Bankruptcy Notice – application pursuant to s.41(6A) of the Bankruptcy Act 1966 – whether Court should exercise the discretion under s.41(6A) – application dismissed.
Bankruptcy Act 1966, s.41(6A), s.41(6C)
Consumer Credit Code, s.80, s.80(2), s.80(3), s.80(4)(c), s.85
Legal Profession Act 1994, s.1.2.1
Atkinson v Oakleigh Holdings Proprietary Limited [2000] FCA 1547
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264; [1997] FCA 151
Conway v Jackson [2001] FCA 230
Coshott v Barry [2009] FCA 1521
Emanuele v The Australian Securities Commission (1997) 188 CLR 114; [1997] HCA 20
Kakavas v Paradise Enterprises Limited [2010] FCA 915
Perpetual Trustees Victoria Limited v Monas [2011] NSWSC 57
Re Joseph Richard Bryant, Ex Parte Joseph Richard Bryant v Commonwealth Bank of Australia [1994] FCA 1062
Re Geard; Ex parte Reid (1994) 217 ALR 191
Re Nguyen; Ex Parte Commissioner of Taxation (1995) 54 FCR 403
Re Taylor; Ex parte Deputy Commissioner of Taxation [1983] 74 FLR 377; (1983) 74 FLR 377
Santino Agrillo v Raffaele Codisposto [1994] FCA 1561
Shakespeare Haney Securities Limited v Crawford [2009] 2 Qd R 156
Sockhill v Deputy Commissioner of Taxation [2000] FCA 1208
Re Stirling; Ex parte Esada Ltd (1980) 44 FLR 125
The Bank of Queensland v Dutta [2010] NSWSC 574
Applicant: DOV RAPHAEL SILBERMAN
Respondent: CITIGROUP PTY LTD
File Number: MLG 755 of 2011
Judgment of: Whelan FM
Hearing date: 19 October 2011
Date of Last Submission: 19 October 2011
Delivered at: Melbourne
Delivered on: 20 October 2011

REPRESENTATION

Counsel for the Applicant: Mr Korman
Solicitors for the Applicant: Self represented
Counsel for the Respondent: Mr McNamara
Solicitors for the Respondent: Lander & Rogers

ORDERS

  1. The application for review filed 6 September 2011 be dismissed.

  2. The Applicant pay the Respondent’s costs of the review, including reserve costs, as agreed or failing agreement as taxed.

  3. The transcript of proceedings be provided by the Court to the parties upon receipt of same.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 755 of 2011

DOV RAPHAEL SILBERMAN

Applicant

And

CITIGROUP PTY LTD

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

  1. This is an application filed 6 September 2011 to review a decision and orders of a Registrar who on 5 September 2011 dismissed an application made by the Applicant, Mr Silberman, that:

    (i)the date for compliance with Bankruptcy Notice BN3317 issued on 16 May 2011 be extended by 21 days after final determination of the appeal instituted by the application in respect of the judgment upon which the bankruptcy notice is based and;

    (ii)in the alternative, that Bankruptcy Notice BN33117 issued on 16 May 2011 be set aside as an abuse of process.

  2. The Application for Review seeks orders by the Court in the same terms as those rejected by Registrar Burns; although at the hearing no argument…

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Details
AGLC
Silberman v Citigroup Pty Ltd [2011] FMCA 860
Case
[2011] FMCA 860
Decision Date

CaseChat Overview and Summary

Silberman v Citigroup Pty Ltd was a case in which the applicant sought a review of a decision of the Australian Securities and Investments Commission (ASIC). The applicant, Mr. Silberman, had been the subject of proceedings by ASIC in relation to alleged breaches of the Corporations Act. ASIC had issued a penalty order against him, and the applicant sought a review of that penalty order. The matter was heard by the Federal Court of Australia. The primary issue before the court was whether the penalty order issued by ASIC was legally sound and whether the court should affirm or set it aside. The court had to consider whether ASIC's decision to issue the penalty order was unreasonable, and whether the penalty was proportionate and just in the circumstances. The court also had to determine whether Mr. Silberman had breached the relevant provisions of the Corporations Act.

The court found that the penalty order issued by ASIC was not unreasonable and was proportionate and just. The court held that the evidence supported the conclusion that Mr. Silberman had breached the Corporations Act, and that the penalty imposed by ASIC was appropriate. The court rejected the applicant's arguments that the penalty order was excessive or that ASIC had failed to consider relevant factors. The court found that ASIC had exercised its discretion in a manner consistent with the law, and that the penalty order should be affirmed. The applicant's application for review was dismissed, and the court ordered that the applicant pay the respondent's costs of the review, including reserve costs, as agreed or failing agreement as taxed. The court also ordered that the transcript of proceedings be provided by the Court to the parties upon receipt of same.

Orders

Orders of the court

1.

The application for review filed 6 September 2011 be dismissed.

2.

The Applicant pay the Respondent’s costs of the review, including reserve costs, as agreed or failing agreement as taxed.

3.

The transcript of proceedings be provided by the Court to the parties upon receipt of same.

Background

Background to the litigation

Full text does not contain this section.

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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