St George Bank v Wright - [2011] FMCA 345

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ST GEORGE BANK v WRIGHT

[2011] FMCA 345

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:

RONALD JOHN WRIGHT

File Number:

BRG 45 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 RONALD JOHN 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 45 of 2011

ST GEORGE BANK – A DIVISION OF WESTPAC BANKING CORPORATION

Applicant

And

RONALD JOHN 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 345
Case: [2011] FMCA 345
Decision Date: 20 April 2011

CaseChat Overview and Summary

In the case of St George Bank v Wright, the dispute arose between St George Bank, as the applicant, and Ronald John Wright, the respondent, over an outstanding debt. The matter was heard in the Federal Circuit Court of Australia, where the court was asked to determine whether a sequestration order should be made against Wright's estate. St George Bank sought the order under the provisions of the Bankruptcy Act 1966, claiming that Wright had failed to repay a significant debt owed to the bank.

The primary legal issue before the court was whether sufficient evidence existed to establish that Wright was unable to pay his debts as they fell due, as required by the Bankruptcy Act. The court needed to assess the validity of the bank's claim and whether the statutory criteria for a sequestration order were met. The evidence presented included statements of account from the bank and other creditors, as well as an affidavit from a bank representative. The court also considered Wright's financial situation, including his income, expenses, and assets.

The court found that the bank had provided sufficient evidence to support its claim that Wright was unable to pay his debts. The affidavit from the bank representative, along with the statements of account, established that Wright had failed to make payments on his debts despite repeated demands. The court concluded that the statutory criteria for a sequestration order were met, as Wright's financial situation demonstrated an inability to pay his debts as they fell due. Consequently, the court made a sequestration order against Wright's estate and ordered that the applicant's costs be taxed and paid from the estate. A consent to act as trustee was signed by Ann Fordyce.

Orders

Orders of the court

A sequestration order be made against the estate of RONALD JOHN 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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