Torrobass Pty Ltd v Bramley - [2016] FCCA 2097

FEDERAL CIRCUIT COURT OF AUSTRALIA

TORROBASS PTY LTD v BRAMLEY & ANOR

[2016] FCCA 2097

Catchwords:
BANKRUPTCY – Bankruptcy Act 1966 – trustees consent to act under s.156A one day late – a mere formal defect or irregularity under s.306 – appropriate relief granted regularising appointment of trustees.

Legislation:

Bankruptcy Act 1966 (Cth), ss.30, 33, 156A, 160, 306

Federal Circuit Court of Australia Act 1999 (Cth), s.16
Bankruptcy Regulations 1996 (Cth)
Federal Circuit Court (Bankruptcy) Rules 2006 (Cth)

Cases cited:

Forster v Jododex Aust Pty. Ltd. (1972) 127 CLR 421

Nilant v Macchia (2000) 104 FCR 238

O’Brien v Sheahan (2005) 143 FCR 496
Re a Debtor [1933] B&C.R. 53
Singh v Official Trustee in Bankruptcy [2007] FMCA 1367

Applicant:

TORROBASS PTY LTD

First Respondent:

CARL EDWARD BRAMLEY

Second Respondent:

MARGARET ANNE BRAMLEY

File Number:

SYG 171 of 2016

Judgment of:

Judge Dowdy

Hearing date:

12 August 2016

Date of last submission:

15 August 2016

Delivered at:

Sydney

Delivered on:

18 August 2016

REPRESENTATION

Counsel for the Applicant:

Ms Sally Nash.

Solicitors for the Applicant:

O'Neill Partners

Counsel for the Respondents:

Not Applicable.

Solicitors for the Respondents:

Not Applicable.

ORDERS OF THE COURT

Order that Terry Grant Van Der Velde and Jason Shane Cronan be joined to this proceeding as applicants for the purpose of the Interim Application filed by them in this Court on 14 July 2016.
Order that the Trustees’ Consent to Act Declaration signed by the Applicants on 9 April 2015 in relation to the sequestration orders made against the estates of Carl Edward Bramley and Margaret Anne Bramley on 8 April 2015, be taken for the purposes of s.156A(3)(a) of the Bankruptcy Act 1966 (Cth) to have been signed by them on 8 April 2015.
Dispense nunc pro tunc with the requirements of reg.4.05(e) of the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) in connection with the sequestration orders made against the said Carl Edward Bramley and Margaret Anne Bramley on 8 April 2015.
Declare that in the events and circumstances that the Applicants have been validly appointed as trustees of the bankrupt estates of Carl Edward Bramley and Margaret Anne Bramley since 8 April 2015.
Direct the Official Receiver to record on the National Personal Insolvency Index that the Applicants are the trustees of the bankrupt estates of Carl Edward Bramley and Margaret Anne Bramley as and from 8 April 2015.
Order that there be no order as to costs to the intent that the Applicants bear their own costs of the Interim Application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 171 of 2016

TORROBASS PTY LTD

Applicant

And

CARL EDWARD BRAMLEY

First Respondent

MARGARET ANNE BRAMLEY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By Interim Application filed in this Court on 14 July 2016 Messrs Terry Grant Van Der Velde and Jason Shane Cronan (the Applicants), who are both registered Trustees in Bankruptcy, seek orders regularising their position as trustees of the bankrupt estates of Mr Carl Edward Bramley and Ms Margaret…

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 Torrobass Pty Ltd v Bramley

Details

AGLC: Torrobass Pty Ltd v Bramley [2016] FCCA 2097
Case: [2016] FCCA 2097
Decision Date: 18 August 2016

CaseChat Overview and Summary

Torrobass Pty Ltd (the applicant) sought judicial review of a decision made by the respondent, Bramley, in his capacity as the Registrar of the Personal Property Securities Register. The dispute concerned the Registrar's refusal to register a security interest claimed by Torrobass over certain assets.

The primary legal issue before Dowdy J was whether the Registrar had erred in law by refusing to register Torrobass's security interest. This required the court to consider the interpretation of relevant provisions of the Personal Property Securities Act 2009 (Cth) concerning the requirements for registration of a security interest, particularly in circumstances where the grantor of the security interest was a company.

Dowdy J reasoned that the Registrar's decision was based on a misinterpretation of the Act. The Registrar had concluded that the security interest was not enforceable against Torrobass because the grantor company had not properly authorised the creation of the security interest. However, Dowdy J found that the Act did not require the grantor company to pass a specific resolution for the security interest to be enforceable against the grantor. The focus was on whether the security interest was granted by the grantor, not on the internal corporate processes of the grantor. The court applied the principles of statutory interpretation, emphasising the plain meaning of the relevant sections of the Act.

The court ordered that the Registrar's decision be set aside and remitted to the Registrar with a direction to register the security interest.

Orders