Teese v Clinch - [2002] FMCA 205

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TEESE v CLINCH & ORS

[2002] FMCA 205

BANKRUPTCY – Application for a stay on bankruptcy proceedings – stay of 21 days previously granted – no further stay possible.

Bankruptcy Act 1966 (Cth), ss.37, 52

Bankruptcy Regulations

Bankruptcy Rules
Federal Court Rules

Coleman v Lazy Days Investments Pty Ltd (1995) 55FCR 297
Day v Gould [2000] FCA 1377
Gould v Day [2002] FCA 66
Trustees of the Franciscan Missionaries of Mary v Weir [2002] FCA 574

Applicant:

ANN CAROLYN TEESE

First Respondent:

Second Respondent:
Third Respondent:

PETER ALLAN ROWLANDS CLINCH

ROSS STANLEY NEVILLE
CLAYTON ANDREW LONG
trading as Clinch Neville Long Lawyers
ABN 32 335 986 435

File No:	SZ450 of 2001
Delivered on:	11 September 2002

Delivered at:

Sydney

Hearing Date:

11 September 2002

Judgment of:

Driver FM

REPRESENTATION

Agent for the Applicant:

Mr P Gargan

Counsel for the Respondent:

Mr J Chippindall

Solicitors for the Respondent:

Clinch Neville Long Lawyers

ORDERS

Motion dismissed.
Applicant on the motion to pay petitioning creditor’s costs, including any reserved costs, to be taxed and paid from the estate of the bankrupt in accordance with the Bankruptcy Act 1966 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ450 of 2001

ANN CAROLYN TEESE

Applicant

And

PETER ALLAN ROWLANDS CLINCH

First Respondent

ROSS STANLEY NEVILLE

Second Respondent

CLAYTON ANDREW LONG

Third Respondent

REASONS FOR JUDGMENT

(CORRECTED JUDGMENT)

I have before me an application by Ms Ann Carolyn Teese for relief stemming from circumstances alleged to have occurred following a sequestration order I made on 20 August 2002. On that date I ordered that the sequestration order be made against the estate of Ms Teese.

I also made orders for costs. I ordered that a copy of the orders be provided to the official trustee within 2 days of entry and order 4 stated that: pursuant to s.52(3) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) all proceedings under the sequestration order be stayed for 21 days after that date, being 20 August.
The complaint made by Ms Teese in these proceedings is that she expected, during the period of the stay, to seek to borrow funds in order to satisfy the debt, at least the debt leading to the creditor’s petition, and possibly other debts as well, and that she was frustrated in that purpose by the fact that the national insolvency index was amended to include reference to the sequestration order I made on 20 August, but without mentioning the stay that I had ordered. The material relied on by Ms Teese in support of the application satisfies me that the petitioning creditor provided a copy of my order to the official receiver, and that in consequence of the creditor doing so the national insolvency index was amended, apparently by ITSA, to include reference to the sequestration order without any reference to the stay.
The material before me asserts that because of that Ms Teese was unsuccessful in obtaining finance to discharge the debt or debts…

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 Teese v Clinch

Details

AGLC: Teese v Clinch [2002] FMCA 205
Case: [2002] FMCA 205
Decision Date: 11 September 2002

CaseChat Overview and Summary

The case of Teese v Clinch involved a dispute between the applicant, Teese, and the bankrupt, Clinch. The dispute arose in the context of an application for an order under the Bankruptcy Act 1966 (Cth) for the bankrupt to pay the costs of the applicant, who was a creditor of the bankrupt. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the applicant was entitled to recover its costs from the bankrupt under the provisions of the Bankruptcy Act. The court had to consider the circumstances in which costs could be awarded against a bankrupt and the extent to which the applicant's costs were recoverable. The court also needed to determine whether the application was made within the appropriate timeframe and whether it complied with the procedural requirements set out in the Act.

The court held that the applicant's motion was not well-founded, and thus, the motion was dismissed. The court reasoned that the applicant had not demonstrated sufficient grounds to warrant an order for the bankrupt to pay the costs. Additionally, the court found that the application was not made within the requisite timeframe and did not meet the procedural requirements of the Act. Consequently, the applicant was ordered to pay the petitioning creditor's costs, including any reserved costs, to be taxed and paid from the bankrupt's estate in accordance with the Bankruptcy Act.

Orders

Orders of the court

Motion dismissed.

Applicant on the motion to pay petitioning creditor’s costs, including any reserved costs, to be taxed and paid from the estate of the bankrupt in accordance with the Bankruptcy Act 1966 (Cth).

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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