FEDERAL COURT OF AUSTRALIA
Tov-Lev v Lowbeer (No 2) [2014] FCA 379
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 84 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: RABBI DR SAMUEL TOV-LEV, DAVID CLIFFE AND JOSEPH DE VARDA
Appellants
AND: JOHN LOWBEER
Respondent
JUDGE:
RARES J
DATE OF ORDER:
11 MARCH 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the respondent's costs.
3.Any stay of the sequestration orders against the appellants, including that ordered by Wigney J on 5 February…
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- AGLC
- Tov-Lev v Lowbeer (No 2) [2014] FCA 379
- Case
- [2014] FCA 379
- Decision Date
CaseChat Overview and Summary
The court considered the legal issues of whether the sequestration orders were properly made, and whether the appellants were entitled to the exercise of the court's discretion to annul the bankruptcy order. The court found that the sequestration orders were correctly made, as there was no evidence to suggest that the appellants could pay their debts as and when they fell due. Furthermore, the court held that the appellants were not entitled to the exercise of the court's discretion to annul the bankruptcy order, as they had not joined their trustee and had not provided any evidence to support their claims.
The court dismissed both the appeal and the application for annulment, and ordered that any existing stay of the operation of the sequestration orders be vacated. The court also ordered that the appellants pay the respondent's costs. The decision highlights the importance of providing evidence and material to support claims in court proceedings, and that the court will not exercise its discretion to annul bankruptcy orders without proper justification.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellants pay the respondent's costs.
3. Any stay of the sequestration orders against the appellants, including that ordered by Wigney J on 5 February 2014, be vacated.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1. The application be dismissed.
2. The applicants pay the respondent's costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Ratio Decidendi
Legal Principle Established
Mr Lowbeer gave evidence that he had not been paid any money, and that Caunt and Lowbeer had only received the $13,635.12 in respect of the costs. He understood that Caunt and Lowbeer, from which he had retired in mid-2011, had incurred all of the legal costs the subject of the assessment under which the 2013 costs order had been assessed. I accept Mr Lowbeer’s evidence.Consideration – should the trial judge have restored the subpoenas? The trial judge made an error in dismissing the application to review the registrar’s orders setting aside the subpoenas on the basis that he found. I am satisfied that the subpoenas were sought for the purposes of obtaining evidence to support the appellants’ notices of opposition, which his Honour was determining. However, in my opinion, the subpoenas were incapable of achieving that result. It is not a legitimate forensic purpose to allow a subpoena to be issued or called on in the speculative hope that they could prove an unparticularised claim. It is not appropriate for a subpoena to be used to support a mere fishing expedition: Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254 per Owen J, with whom Street CJ and Herron J agreed. But it may be that where it appears to be “on the cards” that documents would materially assist a person in the litigation, a proper and sufficient forensic purpose for allowing the subpoena to be called on can be established: see R v Saleam (1989) 16 NSWLR 14 at 18A-B per Hunt J, with whom Carruthers and Grove JJ agreed; Alister v The Queen (1984) 154 CLR 404 at 414 per Gibbs CJ: and see also at 454-456 per Brennan J. Ordinarily, where documents of a corporation are sought in a subpoena to produce documents, the subpoena should be addressed to its proper officer: Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 139-140 per Gibbs CJ, 146 per Mason J (applying Penn-Texas Corporation v Murat Anstalt (No 2) [1964] 2 QB 647 at 661-664 per Lord Denning MR), 151 per Wilson J. That did not occur here. Rather, the persons to whom the four subpoenas to produce were issued were not persons who ordinarily would have possession of the documents sought, although that was a possibility. Mr Lowbeer said that all of Caunt and Lowbeer’s records had been subpoenaed in the Supreme Court proceedings in 2011. Those records may or may not have produced some of the material related to company records and payment for audit or other work in the lengthy period concerned. However, it is unlikely that that subpoena would have picked up any payment in respect of the 2013 costs orders, which were assessed after the subpoenas were issued. The form of the subpoenas issued in the Federal Circuit Court was defective. At no point did the appellants subpoena either of the companies, Caunt and Lowbeer Pty Ltd or Caunt and Lowbeer Audit Pty Ltd, in whose possession one might have expected any relevant documents to be found that may have related to payment in respect of the costs the subject of the 2013 costs order. Instead, they subpoenaed Mr Lowbeer, who had retired from his employment with those companies in June 2011. The appellants made no attempt to explain, and gave no explanation for, their failure to subpoena those two companies for the relevant records. Presumably those companies would have been able to produce any documents that might have supported the case of the appellants.