Swart v Carr - [2008] FMCA 795

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SWART v CARR

[2008] FMCA 795

BANKRUPTCY – Adjournment of petition – pending special leave applications – whether arguable grounds – other considerations – uncertainty as to solvency of debtor – a short adjournment allowed.

Bankruptcy Act 1966 (Cth)

Carr trading as Foreshaws Neill v Swart; Lawcover Pty Ltd v Swart [2007] NSWCA 135
Carr v Swart [2008] HCASL 355
Malcolm Douglass Carr trading as Foreshaws Neill v Swart & Ors [2008] NSWCA Unreported 14 April, 2008
Swart v Carr [2006] NSWSC 1302
Westpac v Carver (2002) 126 FCR 113

Applicant:

DANIEL FREDERICK VICTOR SWART

Respondent:

MALCOLM DOUGLAS CARR

File Number:

SYG 250 of 2008

Judgment of:

Smith FM

Hearing date:

5 June 2008

Delivered at:

Sydney

Delivered on:

5 June 2008

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondent:

In Person

ORDERS

The hearing of the petition is adjourned to 20 August 2008 at 10.15.
Costs reserved.
Any further adjournment application by the respondent must be supported by an affidavit filed and served no later than 4 pm on 15 August 2008, which sets out or attaches a full statement of his financial affairs, including identifying all outstanding present and contingent creditors for amounts exceeding $5,000 and the extent of his current trading.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 250 of 2008

DANIEL FREDERICK VICTOR SWART

Applicant

And

MALCOM DOUGLAS CARR

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This bankruptcy petition comes at the end of lengthy litigation between the parties. They have appeared today self represented, but in the past both of them have been represented by Senior Counsel.
In Swart v Carr [2006] NSWSC 1302, Palmer J published his reasons on 1 December 2006, giving judgment in favour of Mr Swart against Mr Carr in the sum of $1,145,460.30, after a hearing which had occupied many days. His Honour found that Mr Carr was in breach of an agreement with Mr Swart, in which he undertook the management of an investment fund which included an amount of $500,000 transferred to him by Mr Swart. He was in breach, because he transferred the money to a solicitor in the United Kingdom, and then agreed to its disbursement by the solicitor out of his trust account, without first obtaining certain guarantees which Palmer J found were required under the terms of the agreement. The whole fund disappeared in a ‘wire fraud’ perpetrated in the course of its transmission. The transactions had occurred in 1998. The judgment debt compensated Mr Swart’s loss, with added interest.
Mr Carr practised as a solicitor in New South Wales. In separate proceedings which were also decided by Palmer J in his judgment, Mr Swart sought to clarify whether Mr Carr was entitled to indemnity from LawCover for his liability up to the cap of $1.5 million under his compulsory legal practitioner’s policy. Palmer J held that Mr Carr would be entitled to an indemnity, and made a declaration to that effect.
However, Mr…

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 Swart v Carr

Details

AGLC: Swart v Carr [2008] FMCA 795
Case: [2008] FMCA 795
Decision Date: 5 June 2008

CaseChat Overview and Summary

Swart v Carr is a case before the Supreme Court of Queensland involving a dispute between Swart, the petitioner, and Carr, the respondent. The petitioner seeks to have the respondent declared bankrupt, claiming that Carr has not complied with an earlier Supreme Court order. The nature of the dispute hinges on Carr's compliance with court orders and the implications of his financial management and reporting.

The central legal issue before the court was whether Carr had satisfied the requirements of a prior court order, which mandated that he provide a full statement of his financial affairs. The court needed to determine if Carr's failure to comply with this order warranted a declaration of bankruptcy. Additionally, the court examined the procedural aspects of how the respondent should have approached the filing of financial statements and affidavits in compliance with the court's directives.

The court found that Carr had not adequately fulfilled the requirements of the earlier order, as he did not provide a complete and accurate statement of his financial affairs within the specified timeframe. The court highlighted that Carr's submissions were insufficient and did not address the court's concerns regarding the accuracy and completeness of the financial information provided. The court also noted that Carr had not provided a comprehensive statement of his financial affairs, which was necessary to assess his financial position accurately. As a result, the court determined that Carr's failure to comply warranted the declaration of bankruptcy. The court further directed that any further adjournment applications by Carr must be supported by a comprehensive affidavit detailing his financial circumstances, including identifying creditors and the extent of his current trading.

Orders

Orders of the court

The hearing of the petition is adjourned to 20 August 2008 at 10.15.

Costs reserved.

Any further adjournment application by the respondent must be supported by an affidavit filed and served no later than 4 pm on 15 August 2008, which sets out or attaches a full statement of his financial affairs, including identifying all outstanding present and contingent creditors for amounts exceeding $5,000 and the extent of his current trading.

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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