St George Bank Ltd v Field - [2009] FMCA 519

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ST GEORGE BANK LIMITED v FIELD

[2009] FMCA 519

BANKRUPTCY – Bankruptcy petition – opposition based on pending litigation against creditor – whether ‘other sufficient cause’ for dismissing or adjourning petition – likelihood of obtaining verdict exceeding or removing creditor’s debt – insufficient merit shown in litigation – other relevant considerations – sequestration order made.

Bankruptcy Act 1966 (Cth), ss.52(2)(b), 52(5)

Field v Jenolan Caves Resort Pty Ltd [2009] NSWSC 491
Ling v Enrobrook Pty Ltd (1997) 74 FCR 19
St George Bank Ltd v Field [2007] NSWSC 902
Totev v Sfar [2006] FCA 470

Applicant:

ST GEORGE BANK LIMITED

Respondent:

ARCHER PHILLIP FIELD

File Number:

SYG 2887 of 2008

Judgment of:

Smith FM

Hearing date:

22 May 2009

Delivered at:

Sydney

Delivered on:

10 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr P Dowdy

Solicitors for the Applicant:

Henry Davis York

Counsel for the Respondent:

Mr R Newton

Solicitors for the Respondent:

The Peoples Solicitors Pty Ltd

ORDERS

A sequestration order be made against the estate of ARCHER PHILLIP FIELD.
The applicant creditor’s costs, including all reserved costs, be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
All proceedings under the sequestration order are stayed under s.52(3) of the Bankruptcy Act 1966 (Cth) until 5pm on 17 June 2009, on the following conditions:
(a)that Mr Field shall not dispose of any property which may be vested in his trustee in bankruptcy exceeding $5,000 except with the agreement of his trustee,
(b)that Mr Field shall not enter into or incur any new liability exceeding the amount of $5,000, or such other amount as is agreed upon by his trustee.
Note that the date of the act of bankruptcy is 13 May 2008.
Note that a consent to act as trustee has been signed by David Kerr and has been lodged with the Official Receiver in Sydney.
The applicant must within 2 days give a copy of this order to the Official Receiver in Sydney.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2887 of 2008

ST GEORGE BANK LIMITED

Applicant

And

ARCHER PHILLIP FIELD

Respondent

REASONS FOR JUDGMENT

In this petition, the Bank relies upon a debt against Mr Field for $6,800,632.72 under a judgment of the Supreme Court of NSW made on 8 August 2007. Mr Field does not challenge his indebtedness, nor an act of bankruptcy arising upon non-compliance with a bankruptcy notice which was served on 26 November 2007. He concedes that the Bank has established a prima facie entitlement to the making of a sequestration order. However, he invites the Court to exercise its discretion to decline to do this on the ground that it may be satisfied “that for other sufficient cause a sequestration order ought not to be made” within s.52(2)(b) of the Bankruptcy Act 1966 (Cth). This is because he has commenced Federal Court and Supreme Court proceedings claiming damages and other relief against the Bank and other…

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.

Keep reading for free

Create a free CaseChat account to read St George Bank Ltd v Field and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] FMCA 519
Decision Date: 10 June 2009

CaseChat Overview and Summary

St George Bank Limited instituted proceedings against Archer Phillip Field, seeking a sequestration order against his estate. The dispute centred on the debtor’s insolvency and inability to meet his financial obligations. The case was heard in the Federal Circuit Court of Australia. The bank argued that Field had committed acts of bankruptcy, including failing to comply with a bankruptcy notice and being unable to pay his debts as they fell due.

The legal issues before the court were whether Field had indeed committed acts of bankruptcy and if so, whether the conditions for a sequestration order were met. The bank had to demonstrate that Field's liabilities exceeded his assets, and that he was unable to pay his debts. The court also had to consider the appropriate conditions for the stay of proceedings and the management of Field’s estate post-sequestration.

The court found that the bank had substantiated the allegations of Field's insolvency and his failure to comply with the bankruptcy notice. It was established that Field’s debts significantly outweighed his assets, leading to the conclusion that he was indeed unable to pay his debts. The judge granted the sequestration order and imposed specific conditions on the stay of proceedings to protect Field's estate from further financial deterioration. The court ordered that Field was not to dispose of any property exceeding $5,000 without the consent of his trustee and was to avoid incurring new liabilities over the same threshold.

The final orders included the sequestration of Field's estate, the taxation of costs in favour of the bank, and the imposition of specific conditions on the estate's management. The court also noted the effective date of the act of bankruptcy and the consent of the appointed trustee. The bank was required to promptly notify the Official Receiver of the court's decision.

Orders

Orders of the court

A sequestration order be made against the estate of ARCHER PHILLIP FIELD.

The applicant creditor’s costs, including all reserved costs, be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

All proceedings under the sequestration order are stayed under s.52(3) of the Bankruptcy Act 1966 (Cth) until 5pm on 17 June 2009, on the following conditions:

(a) that Mr Field shall not dispose of any property which may be vested in his trustee in bankruptcy exceeding $5,000 except with the agreement of his trustee,

(b) that Mr Field shall not enter into or incur any new liability exceeding the amount of $5,000, or such other amount as is agreed upon by his trustee.

Note that the date of the act of bankruptcy is 13 May 2008.

Note that a consent to act as trustee has been signed by David Kerr and has been lodged with the Official Receiver in Sydney.

The applicant must within 2 days give a copy of this order to the Official Receiver in Sydney.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.