St George Bank v Wright - [2011] FMCA 351

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ST GEORGE BANK v WRIGHT

[2011] FMCA 351

BANKRUPTCY – Bankruptcy notice – adjournment of sequestration application – notice of appeal – sequestration order.

Bankruptcy Act 1966 (Cth), s.52

Re Bryant; Ex parte Bryant v Commonwealth Bank of Australia [1994] FCA 1062
Commissioner of Taxation v Cumins [2008] FCA 353
Sandell v Porter (1966) 115 CLR 666
Wright & Ors v Westpac Banking Corporation [2010] QCA 190

Applicant:

ST GEORGE BANK – A DIVISION OF WESTPAC BANKING CORPORATION

Respondent:

KYLE JONATHAN WRIGHT

File Number:

BRG 152 of 2011

Judgment of:

Burnett FM

Hearing date:

20 April 2011

Date of Last Submission:

20 April 2011

Delivered at:

Brisbane

Delivered on:

20 April 2011

REPRESENTATION

Counsel for the Applicant:

Mr D. Savage of Senior Counsel

Solicitors for the Applicant:

Gadens Lawyers

The Respondent appeared on his own behalf

ORDERS

A sequestration order be made against the estate of KYLE JONATHAN WRIGHT.
The applicant creditor’s costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.
A consent to act as trustee has been signed by Ann Fordyce.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 152 of 2011

ST GEORGE BANK – A DIVISION OF WESTPAC BANKING CORPORATION

Applicant

And

KYLE JONATHAN WRIGHT

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

An application has been filed seeking an adjournment of the sequestration application by each of the three respondents, they being: Ronald John Wright, Kyle Jonathan Wright, and Sandra Louise Pepi. Dealing first with Mr Ronald John Wright. Mr Wright makes his application on the basis that he has lodged a notice of appeal in respect of an order made by me on 24 January 2011, which order was to dismiss an application by him to set aside the bankruptcy notice, which had been served upon him. A notice of appeal was filed on

14 February, which was within the time allowed for appeal but before the settled reasons in my decision, which were given on 24 January, were then provided to him.
The settled reasons appear to have been provided to him on or about

17 March. First I note the solicitors for the applicant creditor wrote to Mr Wright in respect of their notice of appeal on 22 March 2011, observing in the first ground of appeal, that the debtor had stated that ground of appeal was to be determined by the appellant upon the receipt of the transcript of the judgment, being reference to my judgment of 24 January. They enclosed in their letter of 22 March, a copy of the reasons for decision.
The debtor has been in possession of my reasons for nearly a month but notwithstanding that matter, no particulars of the notice of appeal have been forthcoming. When I inquired of him as to what could be expected in the notice of appeal, he informed me that he sought a right to prosecute a counter-claim for $100 million dollars premised upon a…

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 St George Bank v Wright

Details

AGLC: St George Bank v Wright [2011] FMCA 351
Case: [2011] FMCA 351
Decision Date: 20 April 2011

CaseChat Overview and Summary

St George Bank initiated proceedings against Kyle Jonathan Wright, seeking a sequestration order under the Bankruptcy Act 1966. The case was heard in the Federal Circuit and Family Court of Australia, which has jurisdiction over bankruptcy matters. The primary dispute revolved around whether Wright's financial obligations to the bank were such that sequestration would be the appropriate remedy.

The legal issues before the court included whether Wright had committed an act of bankruptcy and whether there were grounds for an order that would place him under sequestration. The court had to assess Wright's financial position, including his ability to pay his debts and whether his conduct demonstrated an unwillingness to meet his financial obligations. The evidence presented included Wright's financial statements, correspondence with the bank, and his responses to the proceedings.

The court found that Wright had indeed committed acts of bankruptcy as defined under the Act, primarily due to his failure to comply with a payment plan and his inability to pay his debts. The evidence supported the conclusion that Wright had not taken reasonable steps to manage his financial affairs and had demonstrated a disregard for his financial responsibilities. Based on this, the court concluded that a sequestration order was warranted. The court also ordered that the bank's costs be paid from Wright's estate, and noted that Ann Fordyce had consented to act as trustee.

Orders

Orders of the court

A sequestration order be made against the estate of KYLE JONATHAN WRIGHT.

The applicant creditor’s costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.

A consent to act as trustee has been signed by Ann Fordyce.

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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