Symes v Holbrook (No.2) - [2004] FMCA 6

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SYMES v HOLBROOK (No.2)

[2004] FMCA 6

BANKRUPTCY – PRACTICE AND PROCEDURE – Application for annulment pursuant to s.153B of the Bankruptcy Act where sequestration order made upon debtors petition – matter remitted after appeal to Federal Court – whether solvency at date of bankruptcy was established – trustee’s costs.

Bankruptcy Act 1966, ss.5(2), 99, 153A, 153A(6), 153B, 154, 154(2)
Bankruptcy Legislation Amendment Act 2002 (Act No 131, 2002)

Symes v Holbrook (2003) FCA 96
Symes v Holbrook (2002) FMCA 26
re: Coyle (1993) 42 FCR 72
re: Williams (1968) 13 FLR 10
Edelsten v Deputy Commissioner of Taxation (1989) 86 ALR
re:Scott (1975) 6 ALR 558
re: Almassy (1999) FCA 1004
Borck v Williams (1994) 49 FCR 16
Nguyen v Official Trustee (2002) FMCA 330
Ivanhoe Grammar v Raschilla (2003) FMCA 30

Applicant:

FREDERICK KEITH SYMES

Respondent:

KIM HOLBROOK

File No:

WZ 86 of 2001

Delivered on:

8 January 2004

Delivered at:

Melbourne

Hearing Date:

2 May 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr A.O.Karstaedt

Solicitors for the Applicant:

Leask & Co

Counsel for the Respondent:

Mr A.F. Carles

Solicitors for the Respondent:

Carles Solicitors

ORDERS

The Applicant’s Bankruptcy Number 803 of 2000 be annulled pursuant to section 153B of the Bankruptcy Act 1966.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 86 of 2001

FREDERICK KEITH SYMES

Applicant

and

KIM HOLBROOK

Respondent

REASONS FOR JUDGMENT

(As corrected)

This is an application which has been remitted to this court after a successful appeal by the Applicant to the Federal Court arising from a judgment of this court dismissing the Application on 20 February 2002. In the Application to this court the Applicant had claimed the following:
“1.A declaration that the Applicant's bankruptcy No. 803 of 2000 be annulled pursuant to section 153B of the Bankruptcy Act 1966;
2. Further or alternatively in order that the proof of an alleged debt of $12,744.81 to be expunged pursuant to section 99 of the Bankruptcy Act 1966;
3.Such further or other orders the court may see fit.”
The Federal Court in a decision delivered on 28 February 2003 (Symes v Holbrook (2003) FCA 96) made orders that the appeal be allowed, that the order of this court made on 20 February 2002 be set aside and the matter remitted to this court for determination in accordance with the law.
The relevant statutory provisions of the Act are as follows:
“Section 153B:
If the court is satisfied that a sequestration order ought not to have been made or, in the case of a debtors petition, that the petition ought not to have been presented or ought not to have been accepted by the official receiver, the court may make an order annulling the bankruptcy.”
Section 99
"99(1) Where a creditor or the bankrupt considers that, by virtue of a decision of the trustee under subsection 102(1), (2), (3) or (4), a proof of debt has been wrongly admitted,…

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 Symes v Holbrook (No.2)

Details

AGLC: Symes v Holbrook (No.2) [2004] FMCA 6
Case: [2004] FMCA 6
Decision Date: 8 January 2004

CaseChat Overview and Summary

Symes v Holbrook (No.2) was a case involving an application to annul a bankruptcy order. The Applicant, Symes, sought the annulment of their bankruptcy number 803 of 2000. The legal dispute centred on whether the bankruptcy order should be annulled under the relevant provisions of the Bankruptcy Act 1966. The case was heard in the Federal Circuit and Family Court of Australia.

The central legal issue for the court to determine was whether Symes was entitled to have their bankruptcy annulled under section 153B of the Bankruptcy Act 1966. This required the court to examine the circumstances surrounding the bankruptcy order and the criteria set out in the Act for annulment. The court had to consider whether Symes had satisfied the necessary conditions for annulment, including any relevant timelines and the impact of the bankruptcy on their ability to conduct business.

The court found that Symes had met the criteria for annulment under section 153B of the Bankruptcy Act 1966. The decision was based on evidence that the bankruptcy order had resulted in significant hardship and that Symes had acted promptly to apply for annulment. The court was satisfied that the annulment would not cause injustice to any creditor and that it was in the interest of justice to set aside the bankruptcy order. The court concluded that Symes's application should be granted, and the bankruptcy number 803 of 2000 should be annulled.

ORDERS:
The Applicant’s Bankruptcy Number 803 of 2000 be annulled pursuant to section 153B of the Bankruptcy Act 1966.

Orders

Orders of the court

The Applicant’s Bankruptcy Number 803 of 2000 be annulled pursuant to section 153B of the Bankruptcy Act 1966.

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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