Tov-Lev v Lowbeer (No 3) - [2014] FCA 699

FEDERAL COURT OF AUSTRALIA
Tov-Lev v Lowbeer (No 3) [2014] FCA 699

Citation: Tov-Lev v Lowbeer (No 3) [2014] FCA 699

Parties: RABBI DR SAMUEL TOV-LEV, DAVID CLIFFE and JOSEPH DE VARDA v JOHN JOSEPH LOWBEER

File number: NSD 84 of 2014

Judge: ROBERTSON J

Date of judgment: 30 June 2014

Catchwords: PRACTICE AND PROCEDURE – application for stay of proceedings under sequestration orders pending determination of application for special leave to appeal to the High Court

Legislation: Judiciary Act 1903 (Cth) s 35A(a)

Cases cited: Tov-Lev v Lowbeer (No 2) [2014] FCA 379

Date of hearing: 30 June 2014

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 25

Counsel for the First Applicant: The first applicant appeared in person

Counsel for the Second Applicant: The second applicant appeared in person

Counsel for the Third Applicant: The third applicant appeared in person

Solicitor for the Respondent: Mr D Austin of Austin Legal

Counsel for the Trustee in Bankruptcy: Mr B Skinner

Solicitor for the Trustee in Bankruptcy: Gadens

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 84 of 2014

BETWEEN:
RABBI DR SAMUEL TOV-LEV
First Applicant

DAVID CLIFFE
Second Applicant

JOSEPH DE VARDA
Third Applicant

AND:
JOHN JOSEPH LOWBEER
Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

30 JUNE 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application in paragraph 1 of the interlocutory application filed on 30 May 2014 be refused.
2.The balance of the interlocutory application be stood over to be dealt with by the Court at a time to be notified to the parties.
3.The applicants pay the respondent’s costs of the application in paragraph 1 of the interlocutory application filed on 30 May 2014.
4.There be no order as to the trustee’s costs of that application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 84 of 2014

BETWEEN:
RABBI DR SAMUEL TOV-LEV
First Applicant

DAVID CLIFFE
Second Applicant

JOSEPH DE VARDA
Third Applicant

AND:
JOHN JOSEPH LOWBEER
Respondent

JUDGE:

ROBERTSON J

DATE:

30 JUNE 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

As duty judge I am dealing with paragraph 1 only of the interlocutory application filed in this Court on 30 May 2014.
The background to that application is the judgment of Rares J given on 11 March 2014, Tov-Lev v Lowbeer (No 2) [2014] FCA 379, and an application for special leave to appeal from part of that judgment, being the part referable to NSD84/2014. That application for special leave to appeal was filed in the High Court of Australia on 7 April 2014, being proceedings S79/2014.
Paragraph 1 seeks an order that all proceedings under the sequestration orders against each of the applicants be stayed pending the determination of the application for special leave to appeal that I have referred to. The relevant orders made by Rares J in matter NSD84/2014 were that the…

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 Tov-Lev v Lowbeer (No 3)

Details

AGLC: Tov-Lev v Lowbeer (No 3) [2014] FCA 699
Case: [2014] FCA 699
Decision Date

CaseChat Overview and Summary

In Tov-Lev v Lowbeer (No 3) [2014] FCA 699, the applicants, Rabbi Dr Samuel Tov-Lev, David Cliffe, and Joseph de Varda, sought an order to stay all proceedings under the sequestration orders against them pending the determination of an application for special leave to appeal to the High Court. The respondents, John Joseph Lowbeer and the trustee in bankruptcy, opposed the application. The matter was before the Federal Court of Australia, specifically the New South Wales District Registry, in the General Division.

The legal issue before the Court was whether the applicants had demonstrated an arguable ground for appeal, and if so, whether the balance of convenience favoured the granting of a stay of the sequestration proceedings. The Court considered the prospects of special leave being granted, as well as the applicants' submissions on the balance of convenience. The Court found that the applicants had not demonstrated an arguable ground for appeal, as their submissions did not address the reasoning in the judgment of Rares J, which was the subject of the special leave application. The Court also found that the applicants had not demonstrated a sufficient balance of convenience in their favour to warrant the granting of a stay. Consequently, the Court refused the relief sought in paragraph 1 of the interlocutory application.

The Court ordered that the application in paragraph 1 of the interlocutory application filed on 30 May 2014 be refused, and that the balance of the interlocutory application be stood over to be dealt with by the Court at a time to be notified to the parties. The applicants were ordered to pay the respondents' costs of the application in paragraph 1 of the interlocutory application filed on 30 May 2014, and no order was made in relation to the costs of the trustee.

Orders