Simonsen v Legge - [2005] FMCA 191

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SIMONSEN v LEGGE

[2005] FMCA 191

BANKRUPTCY – Leave to continue proceedings pursuant to s.58(3) of the Bankruptcy Act 1966 – whether provable debt – meaning of by reason of contract or promise – s.82(2).

Bankruptcy Act 1966, s.58(3)(b),82(2)
Trade Practices Act 1974, s.52

Badgery v Nash & Anor [2002] FMCA 149 (11 July 2002)
Aliferis v Kyriackou (2000) 1 VR 447
Re Sharp; ex parte Tietyens Investments Pty Ltd (in liq) & Anor [1998] FCA 1367

Applicant:

MARK JEFFREY SIMONSEN

Respondent:

GEOFFREY SPENCER LEGGE

File Number:

PEG36 of 2005

Judgment of:

McInnis FM

Hearing date:

25 February 2005

Delivered at:

Melbourne

Delivered on:

1 March 2005

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

No appearance

Solicitors for the Respondent:

Lawton Gillon

Counsel for the Official Trustee:

Mr A Carles

Solicitors for the Official Trustee:

Carles Solicitors

ORDERS

Pursuant to s.58(3)(b) of the Bankruptcy Act 1966 Mark Jeffrey Simonsen is granted leave to commence and continue proceedings in the District Court of Western Australia in Action No. 586 of 2004 against Geoffrey Spencer Legge.
There be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG36 of 2005

MARK JEFFREY SIMONSEN

Applicant

And

GEOFFREY SPENCER LEGGE

Respondent

REASONS FOR JUDGMENT

In this matter the Applicant Mark Jeffrey Simonsen by an Application filed on 9 February 2005 seeks leave of the Court to be granted to the Applicant to continue current proceedings before the Western Australia District Court in Application No 586 of 2004 where Geoffrey Spencer Legge (the Bankrupt) is a Second Defendant and the Applicant is the Plaintiff.
The Applicant claims he did not become aware that the Bankrupt had become bankrupt on 22 March 2004 until he had received a letter dated 4 February 2005 from the Official Trustee in Bankruptcy (ITSA). The Applicant seeks leave of the Court to enable him to continue to enforce a legal remedy against the Bankrupt and the property of the Bankrupt in the District Court proceedings. In his affidavit sworn 9 February 2005 the Applicant claims to have knowledge of undeclared and hidden assets of the Bankrupt not disclosed in his Statement of Affairs to the Trustee.
The Application was the subject of a video link hearing conducted on 25 February 2005. At the hearing Counsel for the Official Trustee submitted that the Applicant does not require leave to continue the proceedings in the District Court on the basis that the Official Trustee had decided that the Applicant’s claim against the Bankrupt is not a provable debt. Accordingly it was submitted the appropriate course for the Court to follow would be to dismiss the Application for Leave to Proceed with no order as to costs.
On the basis that the District Court Proceedings do not relate to a provable debt it was submitted on behalf of the Trustee that the Applicant does not require leave of the Court under s.58(3) of the Bankruptcy Act in order to proceed in the…

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 Simonsen v Legge

Details

AGLC: Simonsen v Legge [2005] FMCA 191
Case: [2005] FMCA 191
Decision Date: 1 March 2005

CaseChat Overview and Summary

The case of Simonsen v Legge involves Mark Jeffrey Simonsen as the plaintiff and Geoffrey Spencer Legge as the defendant. The dispute concerns an action brought by the plaintiff against the defendant in the District Court of Western Australia, specifically in Action No. 586 of 2004. The plaintiff, who is currently bankrupt, seeks leave to continue the legal proceedings against the defendant under the provisions of the Bankruptcy Act 1966.

The primary legal issue before the court was whether the plaintiff, being a bankrupt, is entitled to obtain leave to continue with the proceedings against the defendant. This decision hinged on interpreting section 58(3)(b) of the Bankruptcy Act 1966, which outlines the conditions under which a bankrupt may continue with legal actions. The court had to determine if the plaintiff's action against the defendant met the statutory requirements for obtaining leave to proceed.

The court found that the plaintiff's action met the criteria set out in section 58(3)(b) of the Bankruptcy Act 1966. The court held that the plaintiff was entitled to the leave necessary to continue the proceedings against the defendant. Consequently, the court granted the plaintiff leave to proceed with the action in the District Court of Western Australia. The court did not order any party to bear the costs of the application.

Orders

Orders of the court

Pursuant to s.58(3)(b) of the Bankruptcy Act 1966 Mark Jeffrey Simonsen is granted leave to commence and continue proceedings in the District Court of Western Australia in Action No. 586 of 2004 against Geoffrey Spencer Legge.

There be no order as to costs.

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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