Stewart v White - [2012] FMCA 11

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STEWART v WHITE

[2012] FMCA 11

BANKRUPTCY – Application to set aside bankruptcy notice on ground that it was an abuse of process – no abuse of process made out – application dismissed.

Hubner v ANZ Banking Group Limited (1998) FCA 1779
Wilcox v Cottrell (2000) FCA 1656
Maxwell Smith v S and E Hall Pty Ltd; Re Maxwell Smith (2007) FCA 825

Applicant:

DOUGLAS IAN STEWART

Respondent:

WARREN HOWARD WHITE

File Number:

BRG 1010 of 2011

Judgment of:

Jarrett FM

Hearing date:

24 November, 2011

Date of Last Submission:

24 November, 2011

Delivered at:

Brisbane

Delivered on:

13 January, 2012

REPRESENTATION

Counsel for the Applicant:

Ms Skennar

Solicitors for the Applicant:

Morgan Conley

Counsel for the Respondent:

Mr C. Wilson

Solicitors for the Respondent:

Cogill Woods

ORDERS

The application to set aside the bankruptcy filed on 15 November 2011 is dismissed.
The applicant pay the respondent’s costs of and incidental to the application to be assessed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 1010 of 2011

DOUGLAS IAN STEWART

Applicant

And

WARREN HOWARD WHITE

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

This is an application to set aside a bankruptcy notice and for interim orders to extend time for compliance with the bankruptcy notice until 14 days after certain proceedings presently being prosecuted in the Supreme Court of Queensland have been finalised and any appeal wherefrom has been finalised.
The bankruptcy notice in this case arises from a judgment obtained by the respondent on 15 April, 2011 against the applicant and a company, Douglas Ian White Financial Services Proprietary Limited. The amount of the judgment is $297,336.89. There was an appeal from that judgment but the appeal was unsuccessful.
The bankruptcy notice in this case was served upon the applicant on 25 October, 2011.
On 10 September, 2009 the evidence suggests that the applicant commenced proceedings against Peter Barratt Proprietary Limited, Peter John Barratt, Allan Debtors Pty Ltd and subsequently, Michael Astle. Those proceedings are said to arise out of a partnership agreement between the applicant, Astle, and a company called Polydra Pty Ltd.
The litigation involving that partnership dispute is ongoing. It has not yet been finalised and the evidence permits of a determination that it may not be finalised for some time. The proceedings in the Supreme Court of Queensland have not yet been set down for trial according to the evidence, although there was an attempt made to dispense with the signatures of the defendants to the proceedings to a certificate of readiness or the equivalent document, but that application was not successful. The application was adjourned pending the completion of some further disclosure. Moreover, the pleadings have not yet been finalised and there has been the delivery of an amended pleading by the applicant, as I understand the evidence, recently.
The applicant estimates the value of the claim in the Supreme Court proceedings to be between $2.1…

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 Stewart v White

Details

AGLC: Stewart v White [2012] FMCA 11
Case: [2012] FMCA 11
Decision Date: 13 January, 2012

CaseChat Overview and Summary

In the matter of Stewart v White, the applicant sought to set aside a bankruptcy order made against them. The case was heard in the Federal Circuit Court of Australia. The central dispute revolved around the validity of the bankruptcy proceedings and the application's merits in having the order annulled. The applicant argued that the bankruptcy order was obtained through improper means, and thus should be set aside.

The court was tasked with determining whether the bankruptcy order was correctly made and if there were grounds for setting it aside. Specifically, the court had to examine the evidence provided by the applicant regarding the alleged improper conduct and assess whether such conduct warranted the annulment of the bankruptcy order. Additionally, the court considered the legal principles governing bankruptcy proceedings and the criteria for setting aside such orders.

In its reasoning, the court examined the evidence presented by the applicant, concluding that there was no evidence to substantiate the claim of improper conduct. The court found that the bankruptcy order was correctly made according to the applicable law, and there were no grounds to set it aside. The applicant's application was dismissed, and the court ordered the applicant to pay the respondent's costs of and incidental to the application.

Orders

Orders of the court

The application to set aside the bankruptcy filed on 15 November 2011 is dismissed.

The applicant pay the respondent’s costs of and incidental to the application to be assessed in accordance with the

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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