Taylor David Pty Ltd v Khan - [2019] FCCA 3609

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAYLOR DAVID PTY LTD v KHAN

[2019] FCCA 3609

Catchwords:
BANKRUPTCY – Practice and procedure – application to set aside orders for dismissal of proceedings for want of appearance – whether explanation for failure to appear – whether different orders to those sought to be set aside might be made – application dismissed.

Legislation:

Bankruptcy Act 1966 (Cth), s.306(1)

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 16.05(2)(a)

Cases cited:

FBS18 v Minister for Home Affairs [2019] FCAFC 196

Kyriackou v Shield Mercantile Pty Ltd (2004) 138 FCR 324

Matheson v Scottish Pacific Business Finance Pty Ltd [2005] FCA 670

Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132

Re McSwiney; Ex parte Davies; (unreported, FCA, Beaumont J, P1611 of 1986,

24 November 1986)

Swart v Carr (No.2) [2008] FMCA 1204

Yang v Mead [2009] FCA 1202

Applicant:

TAYLOR DAVID PTY LTD

Respondent:

SHERASZAL KHAN (ALSO KNOWN AS SHER AFZAL KHAN)

File Number:

BRG 527 of 2018

Judgment of:

Judge Jarrett

Hearing date:

8 November 2019

Date of Last Submission:

8 November 2019

Delivered at:

Sydney

Delivered on:

12 December 2019

REPRESENTATION

Solicitors for the Applicant:

Taylor David Lawyers

The Respondent appeared in person

ORDERS

The application in a case filed on 18 September, 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 527 of 2018

TAYLOR DAVID PTY LTD

Applicant

And

SHERASZAL KHAN (ALSO KNOWN AS SHER AFZAL KHAN)

Respondent

REASONS FOR JUDGMENT

This is an application to set aside an order that I made on 25 March, 2019 dismissing the respondent’s application to review a sequestration order made by a registrar on 11 July, 2018.
On 31 May, 2018 the applicant presented a creditor’s petition against the respondent. The petition relied upon an act of bankruptcy constituted by the respondent’s failure to comply with a bankruptcy notice that had been served upon him on 23 January, 2018. The debt set out in the bankruptcy notice was $8,825.26. The debt was evidenced by a judgment of the Magistrates Court of Queensland given on 21 November, 2017 in the applicant’s favour against the respondent.
The petition was listed for hearing on 11 June, 2018. The respondent filed no notice of intention to appear and he did not appear at the hearing of the petition before the registrar. A sequestration order was made in his absence.
Three weeks later, on 1 August, 2018 the respondent filed an application to review the registrar’s decision. That application came before another judge of this court on 22 October, 2018. The applicant informed the Court that he had made an application to set aside the judgment entered against him or perhaps that he had appealed the making of that order. On that day, his Honour made the following order:
1. That in the event the Respondent is unsuccessful in his appeal he is required to file and serve any further affidavit material he intends to rely upon by no later than 4.00pm on…

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 Taylor David Pty Ltd v Khan

Details

AGLC: Taylor David Pty Ltd v Khan [2019] FCCA 3609
Case: [2019] FCCA 3609
Decision Date: 12 December 2019

CaseChat Overview and Summary

Taylor David Pty Ltd (the applicant) sought to set aside orders made by Judge Jarrett in the Federal Court of Australia, which had dismissed its bankruptcy proceedings against Mr Khan (the respondent) for want of appearance.

The primary legal issue before the Court was whether the applicant had provided a sufficient explanation for its failure to appear at the scheduled hearing, thereby justifying the setting aside of the dismissal orders. The Court also considered whether, in the event the dismissal orders were set aside, different orders might be made in relation to the proceedings.

Judge Jarrett dismissed the application, finding that the explanation offered by the applicant for its non-appearance was not satisfactory. The Court applied the principles governing applications to set aside default judgments or dismissals, requiring a genuine explanation for the failure to attend and demonstrating a defence with real prospects of success. In this instance, the Court was not satisfied that the applicant had met this threshold, and therefore, the original orders dismissing the proceedings stood.

Orders