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Sutherland v Vale

Sutherland v Vale

Case [2007] FMCA 1617 2 October 2007

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUTHERLAND v VALE

[2007] FMCA 1617

BANKRUPTCY – Application for possession of land – bankruptcy notice under s.139ZQ of the Bankruptcy Act 1966 (Cth) – valuation of property interest transferred – cross claim seeking to have notice set aside.

Bankruptcy Act 1966 (Cth), ss.5, 58, 77C, 115, 120, 139ZQ, 139ZR 139ZS
Conveyancing Act 1919 (NSW), s.111(2)(b)
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), r.2
Income Tax Assessment Act 1936 (Cth), s.218
Real Property Act 1900 (Cth), ss.57(2), 60
Stamp Duties Act 1920 (NSW), s.68
Valuers Registration Act 1975 (NSW)
Valuers Regulation 2005 (NSW)

Corin & Anor v Patton (1990) 169 CLR 540
Jabbour v Official Receiver & Ors [2002] FMCA 28
Lin v Official Trustee in Bankruptcy (No.1) [2001] FMCA 106
Marchesi v Apostoulou [2006] FCA 1122
Milroy v Lord (1862) 4 De GF & J 264
Morrisey & Anor v Bright [1978] 2 NSWLR 1
Perpetual Trustee Co Ltd v Holdsworth [1966] NSWR 7555
Re Aley; Ex parte Sweeney v Aley and Another (1996) 63 FCR 294
Re Kuch; Ex parte Kuch v Official Trustee in Bankruptcy, No VB 2754 of 1992 FED No 955/95 (unreported)
Re Lucera; Ex parte Official Trustee in Bankruptcy v Lucera and Others (1994) FCR 329
Re McInnes; McInnes v Official Receiver in Bankruptcy, No NB23 of 1999 FED No 882/94 Bankruptcy (unreported)
Re McLennon; Ex parte SWF Hoists & Industrial Equipment Pty Ltd v Prebble (1995) 130 ALR 609
The Electricity Commission of New South Wales (trading as Pacific Power) v Arrow – BC9404936 The New South Wales Court of Appeal (unreported)

McQuade, Paul and Gronow, Michael, McDonald, Henry & Meek: Australian Bankruptcy Law & Practice, Lawbook Co.

Applicant:

RODERICK MACKAY SUTHERLAND

Respondent:

MALCOLM GEOFFREY VALE

File number:

SYG1140 of 2006

Judgment of:

Lloyd-Jones FM

Hearing date:

16 November 2006

Delivered at:

Sydney

Delivered on:

2 October 2007

REPRESENTATION

Counsel for the Applicant:

Mr B Skinner

Solicitors for the Applicant:

Sparke Helmore

Counsel for the Respondent:

Mr JT Johnson

Solicitors for the Respondent:

Watson Mangioni

ORDERS

The cross claim filed on 29 May 2006 is upheld.
The notice issued pursuant to s.139ZQ of the Bankruptcy Act 1966 (Cth) is set aside.
The application seeking possession of the respondent’s properties is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1140 of 2006

RODERICK MACKAY SUTHERLAND

Applicant

And

MALCOLM GEOFFREY VALE

Respondent

REASONS FOR JUDGMENT

The Proceedings

This is an application under r.2 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) filed in the Federal Magistrates Court of Australia on 19 April 2006, seeking orders for the possession of the respondent’s properties and judgment for Mr Sutherland, the applicant, against Mr Vale, the respondent, together with interest. A statement of claim was filed at the same time: see [3] below. The respondent filed a cross claim on 29 May 2006 seeking an order that the notice issued by the Applicant under s.139ZQ of the Bankruptcy Act 1996 (Cth) (“the Act”) be set aside.
The following material has been…

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 Sutherland v Vale

Details

AGLC: Sutherland v Vale [2007] FMCA 1617
Case: [2007] FMCA 1617
Decision Date: 2 October 2007

CaseChat Overview and Summary

Sutherland and Vale were involved in a legal dispute before the Federal Court of Australia. The case centred around a cross claim filed by Sutherland against Vale on 29 May 2006, and a subsequent notice issued by Vale under section 139ZQ of the Bankruptcy Act 1966 (Cth). The crux of the dispute was whether the cross claim should be upheld, and if the notice issued by Vale was valid and enforceable. Additionally, the court had to determine if an application seeking possession of Vale’s properties should be granted.

The legal issues before the court were whether the cross claim was validly filed and could be upheld, and if the notice issued by Vale under section 139ZQ was properly executed. The court also had to consider whether the application for possession of Vale’s properties was justified under the circumstances.

The court found that the cross claim filed by Sutherland was valid and should be upheld. The court ruled that the notice issued by Vale was not in compliance with the statutory requirements and thus was set aside. Additionally, the application seeking possession of Vale’s properties was dismissed by the court. The reasoning was based on the interpretation of the relevant statutory provisions and the procedural fairness owed to Vale. The court held that the procedural steps taken by Vale did not adhere to the necessary legal standards, and thus the application for possession was not warranted.

Orders

Orders of the court

The cross claim filed on 29 May 2006 is upheld.

The notice issued pursuant to s.139ZQ of the Bankruptcy Act 1966 (Cth) is set aside.

The application seeking possession of the respondent’s properties is dismissed.

Background

Background to the litigation

Full text does not contain this section.

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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Actions

Citations

Sutherland v Vale [2007] FMCA 1617

Most Recent Citation

Sutherland v Vale [2007] FCA 1876

Cases Citing This Decision

Janezic v Official Receiver and Anor and; Davidson v Official Receiver and Anor [2020] FCCA 1153
Citation 1 (Para 2)

…FCA 823 (at [24]) per Graham J the notice acts as a charge which remains in place either until it is complied with or set aside: Sutherland v Vale [2007] FMCA 1617 (at [45]).…
Tsakirakis v Official Receiver [2013] FCCA 106
Citation 2 (Para 12)

…Mr Johnson submits that in the matter of Sutherland v Vale [2007] FMCA 1617 there was no ss.120 or 121 action and the notice failed. In this matter, however, there is a positive cross-claim, but that is not the issue before the Court.…
Verge (Trustee), in the matter of Underdown (deceased) (a bankrupt) v Fazio [2013] FCA 18
Citation 3 (Para 14)

…823 (at [24]) per Graham J. The Notice acts as a charge which remains in place either until it is complied with or set aside: Sutherland v Vale [2007] FMCA 1617 (at [45]).…
Vale v Sutherland [2009] HCA 26
Citation 4 (Para 2)

…ondent against the decision of the Federal Magistrates Court (Lloyd‑Jones FM)[2]. [1] Sutherland v Vale (2008) 170 FCR 112. [2] Sutherland v Vale [2007] FMCA 1617.…
Sutherland v Vale [2007] FCA 1876
Citation 5 (Para 1)

…This judgment deals with an application for an extension of time in which to appeal against a judgment of Lloyd-Jones FM ( Sutherland v Vale [2007] FMCA 1617).…

See all citing cases →

Cases Cited

Marchesi v Apostoulou [2006] FCA 1122
Citation 1 (Para 14)

…fore, the estate of Mrs Vale would vest in Mr Sutherland as trustee of her property : s.58 of the Act. Mr Johnson relied on Marchesi v Apostoulou [2006] FCA 1122 per Weinberg J where that transfer had not been registered and the trustee sought a declaration.…
Jabbour v Official Receiver [2002] FMCA 28
Citation 2 (Para 6)

…Mr Johnson also contends that the s.139ZQ notice requires strict construction, as was considered by McInnis FM in Jabbour v Official Receiver & Ors [2002] FMCA 28 at [122]: 122. Accordingly the only other matter remaining to be considered is the issue of whether it is necessary for the s.139ZQ notice dated 28 Mar…
Theo v Official Trustee Bankruptcy & Ors [2002] HCATrans 106
Citation 3 (Para 8)

…reason for the trustee to bring what would be in effect a cross application for a declaration that a transaction is void, as in re McLernon: see also Theo v Official Trustee in Bankruptcy (1996) 70 FCR 317; 34 ATR 404". This is the very application and cross application with which the case before me deals. 14. Mr Bigmore QC who appeared on be…
Theo v Official Trustee in Bankruptcy [2001] HCATrans 520
Citation 4 (Para 8)

…on (1997) 76 FCR 389 the Full Bench of the Federal Court (Black CJ, Lee and RD Nicholson JJ) upheld the decision of Carr J reported as Norton v Halse (1996) 137 ALR 593 that the trustee bore an onus of establishing either that the facts and circumstances alleged in the notice under s 139ZQ and relied upon at the hear…
Lin v Official Trustee in Bankruptcy [2001] FMCA 106
Citation 5 (Para 12)

…Mr Johnson referred to Lin v Official Trustee in Bankruptcy (No.1) [2001] FMCA 106 in which Raphael FM analysed the law in relation to an application to set aside a s.139ZQ notice and a cross application by the trustee to declare the transfer of property void under s.120(1). Mr Johnson acknowledged that a determin…
Halse v Norton [1997] FCA 673
Citation 6 (Para 8)

…n is constitutionally valid ( McLernon; Ex parte SWF Hoists and Industrial Equipment Pty Limited v Prebble (1995) 130 ALR 609). 13. In Halse v Norton (1997) 76 FCR 389 the Full Bench of the Federal Court (Black CJ, Lee and RD Nicholson JJ) upheld the decision of Carr J reported as Norton v Halse (1996) 137 ALR 593 t…
Re Theo, Sol Ex Parte Theo, Sol v Official Trustee in Bankruptcy [1996] FCA 787
Citation 7 (Para 8)

…ould be in effect a cross application for a declaration that a transaction is void, as in re McLernon: see also Theo v Official Trustee in Bankruptcy (1996) 70 FCR 317; 34 ATR 404". This is the very application and cross application with which the case before me deals. 14. Mr Bigmore QC who appeared on behalf of the…
Corin v Patton [1990] HCA 12
Citation 8 (Para 14)

…. Mr Johnson argues that the transfer was an imperfect gift in the traditional sense: Milroy v Lord (1862) 4 De GF & J 264; Corin & Anor v Patton (1990) 169 CLR 540. In circumstances such as this, where the statutory declaration had not been carried into effect by registration of the transfer signed on 23 April 1999,…
Corin & Anor v Patton [1989] HCATrans 197
Citation 9 (Para 14)

…bit “MGV-1”, pp.21-22). Mr Johnson argues that the transfer was an imperfect gift in the traditional sense: Milroy v Lord (1862) 4 De GF & J 264; Corin & Anor v Patton (1990) 169 CLR 540. In circumstances such as this, where the statutory declaration had not been carried into effect by registration of the transfer signed on 23…
Milroy v Lord (1862) 45 ER 1185
Citation 10 (Para 14)

…1996 (first affidavit of Mr Vale, Exhibit “MGV-1”, pp.21-22). Mr Johnson argues that the transfer was an imperfect gift in the traditional sense: Milroy v Lord (1862) 4 De GF & J 264; Corin & Anor v Patton (1990) 169 CLR 540. In circumstances such as this, where the statutory declaration had not been carried into effec…

Legislation Cited

Bankruptcy Act 1966 (Cth) 115, 120, 139ZQ, 139ZR, 5, 58, 77C
7 mentions
Conveyancing Act 1919 (ACT) 111(2)(b)
3 mentions (from Para 13)
Real Property Act 1900 (NSW) 57(2), 60
3 mentions (from Para 13)
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) 2
2 mentions (from Para 1)
Income Tax Assessment Act 1936 (Cth) 218
2 mentions (from Para 6)
Stamp Duties Act 1920 (NSW) 68
2 mentions (from Para 17)
Acts Interpretation Act 1901 (Cth)
1 mention (from Para 11)
Valuers Registration Act 1975 (NSW)
1 mention (from Para 18)