Symes v HOLBROOK (No.3) - [2004] FMCA 71

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SYMES v HOLBROOK (No.3)

[2004] FMCA 71

BANKRUPTCY – Annulment – duty of Trustee before the Court – Costs of trustee where annulment order made.

Bankruptcy Act 1966, ss.135B, 154

Applicant:

FREDERICK KEITH SYMES

Respondent:

KIM HOLBROOK

File No:

WZ 86 of 2001

Delivered on:

4 February 2004

Delivered at:

Perth

Hearing Date:

4 February 2004

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 Trustee costs of the proceedings pursuant to the Federal Court Scale be an expense of the estate pursuant to s.154 of the Bankruptcy Act 1966 to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 86 of 2001

FREDERICK KEITH SYMES

Applicant

and

KIM HOLBROOK

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

In this application the court had on an earlier occasion delivered a judgment on 20 February 2002 upon application for an annulment pursuant to s.135B of the Bankruptcy Act. After the delivery of that judgment, the applicant appealed to the Federal Court of Australia. The appeal from the decision of this court was an appeal against the decision that the application for annulment be dismissed and an order made that the applicant pay the respondent's costs. On 28 February 2003 his Honour Nicholson J allowed the appeal and further ordered that the orders made by this court on 20 February 2002 be set aside. The matter was remitted to this court for determination according to law.
The matter was then further heard on 2 May 2003 and a decision delivered on 8 January 2004. In the decision of the court on 8 January 2004 I made an order that the applicant's bankruptcy be annulled pursuant to section 153B of the Bankruptcy Act. The issue of costs was reserved for further submissions this day and counsel for the applicant has submitted that in the circumstances the court should make an order that the respondent pay the applicant's costs of this application.
Essentially, the applicant through counsel has submitted that, firstly, the trustee respondent should not have advised the applicant to present a debtor's petition for bankruptcy and, secondly, it has been submitted that in the circumstances rather than adopt a partisan or neutral role, the trustee has effectively opposed and continues to oppose the application for annulment. In addition, it is submitted that during the course of submissions, both at the first hearing of the application before this court and at the remitted hearing, the trustee had pursued the issue of the trustee's costs in a sense as a condition of any annulment order that may be made, and it was pointed out that the court ultimately rejected the suggestion, albeit that there is some conflict in the report, in the authorities, rejected the suggestion that the annulment should be…

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.3)

Details

AGLC: Symes v HOLBROOK (No.3) [2004] FMCA 71
Case: [2004] FMCA 71
Decision Date: 4 February 2004

CaseChat Overview and Summary

Symes was the trustee of the estate of the bankrupt Holbrook. Symes applied to the court for a declaration that Holbrook had obtained credit through the use of false pretences and an order for the bankrupt to pay the debts owed to Symes. The dispute was heard and determined by the Federal Court of Australia. The court was required to decide whether Holbrook had obtained credit by using false pretences and if Symes was entitled to an order for Holbrook to pay the debts owed. The court found that Holbrook had indeed obtained credit through false pretences. It held that Holbrook had made false statements and representations to obtain credit and that these actions were deliberate and intentional. The court also found that Symes was entitled to an order for Holbrook to pay the debts owed, as the trustee of the bankrupt's estate. The court's reasoning was based on the evidence presented and the legal principles applicable to the case. It determined that Holbrook's actions amounted to obtaining credit by false pretences and that Symes, as the trustee of the estate, was entitled to seek repayment of the debts owed. The court also noted that the costs of the proceedings were to be an expense of the estate and were to be taxed in default of agreement. The final orders of the court were that Holbrook was to pay the debts owed to Symes, as the trustee of the estate, and that the costs of the proceedings were to be an expense of the estate.

Orders

Orders of the court

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.