Snowball v Singh (No 2) - [2024] FedCFamC2G 415

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Snowball v Singh (No 2) [2024] FedCFamC2G 415

File number: MLG 1844 of 2023

Judgment of: JUDGE FORBES

Date of judgment: 9 May 2024

Catchwords: BANKRUPTCY - application for review of Registrar’s decision to make sequestration order – hearing de novo - where respondent debtors have not filed material in support of application – where debtors sought adjournment to challenge underlying debt – adjournment refused – whether petitioning creditor proved outstanding debt – application for review dismissed and Registrar’s orders affirmed

Legislation:
Bankruptcy Act 1966 (Cth) s 40, 43, 47, 52

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256

Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) r 4.05, 4.06

Oaths and Affirmations Act 2018 (Vic) s 27

Cases cited:
Bechara v Bates (2021) [2021] FCAFC 34

Guss v Larkfield Industrial Estates Pty Ltd [2023] FedCFamC2G 235

Snowball v Singh [2024] FedCFamC2G 414

Division: Division 2 General Federal Law

Number of paragraphs: 55

Date of hearing: 24 April 2024

Place: Melbourne

Counsel for the Applicant: Mr Boadle

Solicitor for the Applicant: Sanicki Lawyers

Solicitor for the Respondents: Hone Legal & Conveyancing
ORDERS

MLG 1844 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF ASHIL ROHIT SINGH AND LOUISE NATALIE SINGH, BANKRUPTS

BETWEEN:
THOMAS ERICK SNOWBALL

Applicant

AND:
ASHIL ROHIT SINGH

First Respondent

LOUISE NATALIE SINGH

Second Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

9 MAY 2024

THE COURT ORDERS THAT:
1.The application by the Respondent debtors filed on 1 March 2024 for review of Judicial Registrar Ellis’ orders made on 29 February 2024 is dismissed.
2.The orders made by Judicial Registrar Ellis on 29 February 2024 are affirmed, including that the estates of the Respondents be sequestrated under the Bankruptcy Act 1966 (Cth) and that the Applicant creditor’s costs be paid from the estates of the Respondent debtors.
3.Any application by the Applicant creditor for costs in relation to the review application shall be in the form of a written submission, not exceeding 3 pages, setting out the basis on which such costs are to be calculated and ordered. Any such submission must be filed no later than 14 days after the date of these orders.
4.The Respondent debtors may file a written submission in reply on the question of costs, not exceeding 3 pages, no later than 21 days after the date of these orders.
5.The question of costs will be determined on the papers.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

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 Snowball v Singh (No 2)

Details

AGLC: Snowball v Singh (No 2) [2024] FedCFamC2G 415
Case: [2024] FedCFamC2G 415
Decision Date: 9 May 2024

CaseChat Overview and Summary

In the County Court of Victoria, the case of Snowball v Singh (No 2) involved the applicants, the respondents in the underlying matter, appealing against a sequestration order made by the Judicial Registrar. The applicants sought to overturn the Registrar's decision, which had ordered the sequestration of their estates following a creditor's petition. The crux of the matter was the validity of the creditor's claim and whether the applicants' failure to comply with the bankruptcy notices warranted the sequestration of their estates. The applicants argued that they had not been given adequate opportunity to challenge the underlying debt and sought an adjournment to contest the debt.

The court was tasked with determining whether the applicants had provided sufficient grounds for review and if the creditor had successfully proven the outstanding debt to justify the sequestration order. The applicants' failure to adhere to the Court's case management orders, specifically the deadlines for filing affidavits and outlines of submissions, was also a significant issue. The applicants' lack of preparedness contrasted sharply with the creditor's thorough documentation, which included affidavits confirming the outstanding judgment debt and a comprehensive court book of all relevant documents.

The Court found that the applicants had not substantiated their grounds for review and had failed to challenge the creditor's evidence effectively. The creditor's documentation, including the affidavits and the court book, provided a clear and convincing demonstration of the outstanding debt. Given the applicants' failure to comply with the Court's directions and the lack of material to support their case, the Court dismissed the application for review. Consequently, the Registrar's orders were affirmed, and the sequestration of the applicants' estates was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 7 October 2022 the County Court of Victoria entered judgment in default (default judgment) in favour of the applicant creditor against the respondents in a sum of $204,646.56 (judgment debt). The judgment debt has not been met and bankruptcy notices were issued against each of the respondents. Following the failure of the respondents to comply with the bankruptcy notices within the requisite period, the applicant petitioned to sequestrate their estates. Upon the creditor’s petition, Judicial Registrar Ellis found that the first respondent committed an act of bankruptcy on 16 October 2023 and the second respondent committed an act of bankruptcy on 10 October 2023. In each case, the respondents failed to pay debts prescribed in bankruptcy notices served upon them. As well as sequestrating their estates, the Judicial Registrar ordered that the applicant’s costs be paid from the estates of the respondent debtors in a sum of $6,390.50.APPLICATION FOR REVIEW The application for review filed by the respondent debtors seeks a review of all the orders made by the Judicial Registrar. The application does not advance the grounds on which the review is sought. However, the respondents seek that the proceeding based on the creditor’s petition be dismissed. On 13 March 2024, the Court made case management orders including that:(a)by no later than 4pm on 28 March 2024, the respondents file and serve any affidavit(s) in which they intend to rely and an outline of submissions setting out grounds and argument about why the Judicial Registrar’s decision should be set aside; and(b)by no later than 4pm on 16 April 2024, the applicant file and serve any affidavit(s) on which he intends to rely and an outline of submissions setting out why the judicial registrar’s decision should be affirmed. The respondents, who are the applicants in this proceeding, did not comply with the Court’s directions. By the day prior to the hearing of the application, only the applicant (as the respondent in this proceeding) had filed any materials. The applicant creditor had filed a number of documents upon which he intended to rely, including:(a)an affidavit of the applicant sworn 15 April 2024 deposing to the truth of the matters stated in the creditor’s petition and confirming that the judgment debt was still owing;(b)an outline of submissions as to why the sequestration orders should be made;(c)an affidavit of search from the applicant’s solicitors affirmed on 23 April 2024;(d)an affidavit of the applicant sworn in the United Kingdom but electronically witnessed by his solicitor in Australia on 23 April 2024 deposing to the judgment debt remaining outstanding; and(e)a court book comprising all relevant background documents including the judgment order and bankruptcy notices, creditor’s petition and supporting documents, affidavits of service, documents filed for the hearing before Judicial Registrar Ellis and documents filed prior to the review hearing before me.HEARING

Ratio Decidendi

Legal Principle Established

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File number:	MLG 1844 of 2023
Judgment of:	JUDGE FORBES
Date of judgment:	9 May 2024
Catchwords:	BANKRUPTCY - application for review of Registrar’s decision to make sequestration order – hearing de novo - where respondent debtors have not filed material in support of application – where debtors sought adjournment to challenge underlying debt – adjournment refused – whether petitioning creditor proved outstanding debt – application for review dismissed and Registrar’s orders affirmed
Legislation:	Bankruptcy Act 1966 (Cth) s 40, 43, 47, 52 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256 Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) r 4.05, 4.06 Oaths and Affirmations Act 2018 (Vic) s 27
Cases cited:	Bechara v Bates (2021) [2021] FCAFC 34 Guss v Larkfield Industrial Estates Pty Ltd [2023] FedCFamC2G 235 Snowball v Singh [2024] FedCFamC2G 414
Division:	Division 2 General Federal Law
Number of paragraphs:	55
Date of hearing:	24 April 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Boadle
Solicitor for the Applicant:	Sanicki Lawyers
Solicitor for the Respondents:	Hone Legal & Conveyancing

MLG 1844 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) IN THE MATTER OF ASHIL ROHIT SINGH AND LOUISE NATALIE SINGH, BANKRUPTS
BETWEEN:	THOMAS ERICK SNOWBALL Applicant
AND:	ASHIL ROHIT SINGH First Respondent LOUISE NATALIE SINGH Second Respondent

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	9 MAY 2024