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Taubert v Eddaglide Pty Ltd

Taubert v Eddaglide Pty Ltd

Case [2001] FCA 567 17 May 2001

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FEDERAL COURT OF AUSTRALIA
Taubert v Eddaglide Pty Ltd
[2001] FCA 567
BANKRUPTCY – application to set aside summary judgment forming basis of bankruptcy notice – whether appropriate to go behind summary judgment – where debtor granted extension of time for compliance to enable judgment to be set aside in appropriate court – failure by applicant to set aside judgment – relevance of cross-claim set-off or cross demand less than judgment debt by applicant – where principal liability conceded in related proceedings – whether judgment “final judgment” under Bankruptcy Act 1966 (Cth) – effect of Mareva order obtained by creditor
Bankruptcy Act 1966 (Cth) ss 40(1), 40(3), 41(1), 41(3), 41(5), 41(6), 41(6A), 41(6C), 41(7), 86
Corporations Law s 553C
Olivieri v Stafford (1989) 24 FCR 413 referred to
Malouf v Malouf (1999) 86 FCR 134 referred to
Boscolo v Botany Council, (Jenkinson, O’Loughlin & Sackville JJ, 16 October 1996, unreported) referred to
Wiltshire-Smith v Olsson (1995) 57 FCR 572 referred to
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 referred to
SIGMUND TAUBERT v EDDAGLIDE PTY LIMITED (IN LIQUIDATION) ACN 051 149 596 and GUNDAGAI GOLD PTY LIMITED (IN LIQUIDATION) ACN 002 862 615 IN THE MATTER OF SIGMUND TAUBERT
N 7748 OF 2000
GYLES J
SYDNEY
17 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 7748 OF 2000

IN THE MATTER OF SIGMUND TAUBERT

BETWEEN:

SIGMUND TAUBERT
APPLICANT

AND:

EDDAGLIDE PTY LIMITED (IN LIQUIDATION)
ACN 051 149 596
FIRST RESPONDENT

GUNDAGAI GOLD PTY LIMITED (IN LIQUIDATION)
ACN 002 862 615
SECOND RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

17 MAY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Application dismissed.
2.The applicant is to pay the costs of the respondents, including all costs reserved in the proceedings up to and including the date of judgment.
3.The time for compliance with bankruptcy notices NN5404 of 2000 and NN5405 of 2000 be extended until 1 June 2001.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 7748 OF 2000

IN THE MATTER OF SIGMUND TAUBERT

BETWEEN:

SIGMUND TAUBERT
APPLICANT

AND:

EDDAGLIDE PTY LIMITED (IN LIQUIDATION)
ACN 051 149 596
FIRST RESPONDENT

GUNDAGAI GOLD PTY LIMITED (IN LIQUIDATION)
ACN 002 862 615
SECOND RESPONDENT

JUDGE:

GYLES J

DATE:

17 MAY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an application by Sigmund Taubert (“the applicant”) filed on 18 August 2000 pursuant to s 41(6A) of the Bankruptcy Act 1966 (Cth) (“the Act”) for orders that the time for compliance with bankruptcy notice NN5404 of 2000, served on the applicant on 31 July 2000 by Eddaglide Pty Limited ACN 051 149 596 (“the first respondent”) and bankruptcy notice NN5405 of 2000, served on the applicant on 31 July 2000 by Gundagai Gold Pty Limited ACN 002 862 615 (“the second respondent”) be extended and that each bankruptcy notice be set aside. The matter was…

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 Taubert v Eddaglide Pty Ltd

Details

AGLC: Taubert v Eddaglide Pty Ltd [2001] FCA 567
Case: [2001] FCA 567
Decision Date: 17 MAY 2001

CaseChat Overview and Summary

The matter of Taubert v Eddaglide Pty Ltd was heard in the Federal Court of Australia. The applicant, Taubert, sought relief from bankruptcy notices issued by Eddaglide Pty Ltd. The primary contention was whether the bankruptcy notices were invalid due to procedural irregularities, and whether Taubert's application for relief should be granted.

The court needed to determine the validity of the bankruptcy notices and the procedural steps taken by Eddaglide Pty Ltd. It was crucial to assess whether there were any breaches in the statutory requirements for issuing bankruptcy notices under the Bankruptcy Act 1966. Additionally, the court had to consider whether Taubert had a reasonable prospect of successfully defending the bankruptcy notices.

In delivering the judgment, the court found that the bankruptcy notices were validly issued and that there were no procedural errors on the part of Eddaglide Pty Ltd. The court held that Taubert had not demonstrated a reasonable prospect of successfully defending the bankruptcy notices. Consequently, the application for relief from the bankruptcy notices was dismissed. The court also ordered that Taubert pay the costs of the proceeding and extended the time for compliance with the bankruptcy notices until 1 June 2001.

Orders

Orders of the court

1. Application dismissed.

2. The applicant is to pay the costs of the respondents, including all costs reserved in the proceedings up to and including the date of judgment.

3. The time for compliance with bankruptcy notices NN5404 of 2000 and NN5405 of 2000 be extended until 1 June 2001.

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

GYLES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GYLES J

Full text does not contain this section.

Citations

AGLC Citation

Taubert v Eddaglide Pty Ltd [2001] FCA 567

Most Recent Citation

Combe v Ziade (In the matter of Faye Diane Combe) [2002] FCA 828

Cases citing this decision · 8 of 8 shown

Fox v Big Country Developments Pty Ltd
[2016] FCCA 2447 Para 4

…change of status brought about by the making of a sequestration order: Sharpe at [28] citing Byron at 270; Taubert v Eddaglide Pty Ltd [2001] FCA 567 ; Shepherd v Chiquita Brands (South Pacific) Ltd [2001] FCA 1394; and Hovan v Goycolea–Silva [2003] FCA 234; d)the following matters are considerations relevant to…
Jagatramka v Coeclerici Asia (PTE) Limited (No.2)
[2015] FCCA 2743 Para 5

…actical effect of preventing the applicant from dealing with his assets in order to pay the very parties who obtained the Mareva orders. [58] [2001] FCA 567 at [16]…
Sharpe v W H Bailey & Sons Pty Ltd
[2014] FCA 921 Para 28

…t by the making of a sequestration order: Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 at 270 (“ Byron ”); Taubert v Eddaglide Pty Ltd [2001] FCA 567 at [13]; Shephard v Chiquita Brands (South Pacific) Ltd [2001] FCA 1394 at [5]; Hovan v Goycolea-Silva [2003] FCA 234.…
Saveski v Velik
[2013] FCCA 712 Para 34

…ere as being subject to a sequestration order ( Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264; [1997] FCA 151 and Taubert v Eddaglide Pty Ltd [2001] FCA 567).…
Gorczynski v Aitken and Ors (No.2)
[2011] FMCA 86 Para 2

…ng committed an act of bankruptcy are not as severe as the making of a sequestration order (see Byron v Southern Star and Taubert v Eddaglide Pty Ltd [2001] FCA 567). Further, as Lehane J pointed out in Byron v Southern Star the interests of the judgment creditor and other creditors of the judgment debtor are als…
Rayner v Ollis
[2007] FMCA 1160 Para 11

…k J in National Australia Bank Ltd v Pollak (2001) 186 ALR 44 at [41]‑[52] to be valuable. (See also Taubert v Eddaglide Pty Ltd (in liq) [2001] FCA 567 at [15]‑[16].) I should add that Mathews J made no reference in Stuart‑Jones to the debtor being able to make an application of the kind provided for by s 24 of…
Sood v Crown Diagnostic Imaging Pty Ltd
[2006] FCA 1721 Para 12

…Madgwick J in National Australia Bank Ltd v Pollak (2001) 186 ALR 44 at [41]–[52] to be valuable . (See also Taubert v Eddaglide Pty Ltd (in liq) [2001] FCA 567 at [15]–[16].) I should add that Mathews J made no reference in Stuart-Jones to the debtor being able to make an application of the kind provided for by…
Combe v Ziade (In the matter of Faye Diane Combe)
[2002] FCA 828 Para 9

…s been allowed more than enough opportunity to take appropriate steps to set aside the judgment in question. As I said in Taubert v Eddaglide Pty Ltd [2001] FCA 567 at [19]: “… It would be a rare case where this Court would extend time further to explore a shadowy defence when time for compliance had been extende…

View all 8 citing cases →

Cases cited in this decision · 5 of 5 shown

Malouf v Malouf
[1999] FCA 710 Para 14

…g of s 40(1)(g) of the Act, I was referred to the analysis of the authorities on the meaning of “final” as contrasted with “interlocutory” in Malouf v Malouf (1999) 86 FCR 134, in which the earlier authorities are reviewed. These authorities discuss the issue in other statutory contexts. In my opinion, s 40(3)(b) of the…
Malouf v Malouf
[1999] FCA 284 Para 14

…of the Act, I was referred to the analysis of the authorities on the meaning of “final” as contrasted with “interlocutory” in Malouf v Malouf (1999) 86 FCR 134, in which the earlier authorities are reviewed. These authorities discuss the issue in other statutory contexts. In my opinion, s 40(3)(b) of the Act has the…
Byron v Southern Star Group Pty Ltd
[1997] HCATrans 193

…son, O’Loughlin & Sackville JJ, 16 October 1996, unreported) referred to Wiltshire-Smith v Olsson (1995) 57 FCR 572 referred to Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 referred to SIGMUND TAUBERT v EDDAGLIDE PTY LIMITED (IN LIQUIDATION) ACN 051 149 596 and GUNDAGAI GOLD PTY LIMITED (IN LIQUIDATION) ACN 002 862 615 IN THE MATTE…
Re Holden, C.P. v Ex parte Holden, M
[1989] FCA 486 Para 13

…e Court might go behind the judgment. This relieves me of the necessity to examine those issues for myself. They are discussed in Olivieri v Stafford (1989) 24 FCR 413 (“ Olivieri ”), particularly by Gummow J at 430-432. I do not assume, however, that it is appropriate to deal with an application to set aside a bank…
[1995] FCA 1359
[1995] FCA 1359 Para 15

…inson, O’Loughlin and Sackville JJ, 16 October 1996, unreported) and the cases referred to in that decision (in particular Wiltshire-Smith v Olsson (1995) 57 FCR 572 (“ Wiltshire-Smith ”)) that a Mareva injunction which the respondents had obtained against the applicant had the practical effect of staying execution…

Legislation cited in this decision · 1

Bankruptcy Act 1966 (Cth)
40(1), 40(3), 41(1), 41(3), 41(5), 41(6)... 11 mentions (from Para 1)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7748 OF 2000

BETWEEN:	SIGMUND TAUBERT APPLICANT
AND:	EDDAGLIDE PTY LIMITED (IN LIQUIDATION) ACN 051 149 596 FIRST RESPONDENT GUNDAGAI GOLD PTY LIMITED (IN LIQUIDATION) ACN 002 862 615 SECOND RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	17 MAY 2001
WHERE MADE:	SYDNEY

JUDGE:	GYLES J
DATE:	17 MAY 2001
PLACE:	SYDNEY