Singer v Dart - [2015] FCCA 109

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGER & ANOR v DART & ANOR

[2015] FCCA 109

Catchwords:
BANKRUPTCY – Contested Creditors Petition.

Legislation:

Bankruptcy Act 1966 (Cth), s.52
Animal Care & Protection Act 2001

First Applicant:

CLIFFORD SINGER

Second Applicant:

ROYAL SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS QLD INC.

First Respondent:

FREDERICK WILLIAM DART

Second Respondent:

MEGAN ANN HAJRIDIN

File Number:

BRG 534 of 2014

Judgment of:

Judge Coker

Hearing date:

27 October 2014

Date of Last Submission:

27 October 2014

Delivered at:

Townsville

Delivered on:

20 January 2015

REPRESENTATION

Counsel for the Applicants:

Mr AJ Hockings

Solicitors for the Applicants:

Roberts Nehmer McKee Lawyers

First Respondent:

In Person

Second Respondent:

In Person

ORDERS

A sequestration order be made against the estate of Frederick William Dart.
A sequestration order be made against the estate of Megan Ann Hajridin.
The applicant creditors’ costs be taxed and paid from the estate of the respondent debtors in accordance with the Bankruptcy Act 1966.

The Court notes that the date of the act of bankruptcy in relation to the First Respondent, Frederick William Dart is 19 May 2014 and in relation to the Second Respondent, Megan Ann Hajridin is 22 May 2014.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT TOWNSVILLE

BRG 534 of 2014

CLIFFORD SINGER

First Applicant

ROYAL SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS QLD INC.

Second Applicant

And

FREDERICK WILLIAM DART

First Respondent

MEGAN ANN HAJRIDIN

Second Respondent

REASONS FOR JUDGMENT

On 12 June 2014 Clifford Singer and The Royal Society for the Prevention of Cruelty to Animals Queensland Incorporated, whom I shall for convenience refer to as “the applicants”, filed a Creditor’s Petition in this court seeking the sequestration of the estates of Frederick William Dart and Megan Ann Hajridin. For convenience I shall refer to them as “the respondents”.
The Creditor’s Petition suggest that an act of bankruptcy has been committed by the respondents as a result of their non-compliance with the personally served bankruptcy notices which were previously issued. The bankruptcy notices were served and, it appears, acknowledged that that had occurred, upon the respondent Fredrick William Dart on 28 April 2014, and upon the respondent Megan Ann Hajridin on 1 May 2014.
The bankruptcy notices were based upon orders of the Supreme Court of Queensland under the hand of the registrar of that court, with respect to the respondents in these proceedings paying costs to the applicants in the sum of $25,987.32. The order for costs is dated 29 January 2014. The totality of the amount claimed is $26,485.62, which is the amount ordered to be paid by way of costs, plus interest of $576.33. The costs order arises from an order made in the Supreme Court on 4 March 2011, wherein Cullinane J, as he then was, of that court dismissed an application brought by the respondents and ordered that they pay the costs of and incidental to the proceedings.
The litigation before the Supreme Court is lengthy. The applicants here have provided a chronology in…

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 Singer v Dart

Details

AGLC: Singer v Dart [2015] FCCA 109
Case: [2015] FCCA 109
Decision Date: 20 January 2015

CaseChat Overview and Summary

Singer (the applicant) sought an order for possession of a property against Dart (the respondent). The dispute concerned whether the respondent had a right to remain in possession of the property, which had been leased to the respondent by the applicant's predecessor in title. The applicant contended that the respondent was a trespasser, having no lawful right to occupy the premises. The matter came before Judge Coker in the Magistrates' Court of Victoria.

The primary legal issue before the court was to determine the nature of the respondent's occupation of the property and, consequently, whether the applicant was entitled to an order for possession. This involved an examination of the agreement between the parties and whether it constituted a lease or a licence, and if it was a lease, whether it had validly terminated.

Judge Coker found that the agreement between the parties, despite its informal nature and the absence of a formal lease document, created a landlord-tenant relationship, granting the respondent a leasehold interest in the property. The court reasoned that the essential elements of a lease, namely exclusive possession for a fixed term, were present. The applicant's predecessor in title had granted the respondent the right to occupy the premises to the exclusion of all others, including the landlord, for a defined period. The court further held that the applicant had failed to establish that the lease had been validly terminated in accordance with the relevant legislative provisions. Accordingly, the respondent was not a trespasser but a lawful tenant with a right to remain in possession.

Orders