Ure v Robertson - [2011] FMCA 750

FEDERAL MAGISTRATES COURT OF AUSTRALIA

URE v ROBERTSON

[2011] FMCA 750

BANKRUPTCY – Creditor's Petition – solvency – other sufficient cause – counterclaim or cross demand – no proof of counterclaim or cross demand – abuse of process – no abuse of process.

Bankruptcy Act 1966, ss.52(1), 52(2)(a), 52(2)(b)
Uniform Civil Procedure Rules 1999

Cain v White (1933) 48 CLR 639
Hubner v ANZ Banking Group Limited [1998] FCA 1779
International Alpaca Management Pty Ltd v Ensor [1999] FCA 72
Ling v Enrobook Pty Ltd (1997) 74 FCR 19
Narain v Euroasia (Pacific) Pty Ltd [2010] FCA 1352
Randall v Deputy Commissioner for Taxation [2008] FMCA 858
Re Dolman; Ex parte Elder Smith Goldsbrough Mort Ltd (1967) 10 FLR 384
Re Schmidt; Ex parte Anglewood Pty Ltd (1968) 13 FLR 111
Rozenbes v Kronhill (1956) CLR 407
Sandell v Porter (1966) 115 CLR 666
Ure v Robertson [2010] QSC 483
Wilcox v Cottrell [2000] FCA 1656

Petitioning Creditor:

LYNN KATHLEEN URE

Debtor:

PATRICIA JUNE ROBERTSON

File Number:

BRG 413 of 2011

Judgment of:

Jarrett FM

Hearing date:

20 July 2011

Date of Last Submission:

20 July 2011

Delivered at:

Brisbane

Delivered on:

30 September 2011

REPRESENTATION

Counsel for the Petitioning Creditor:

Mr Amerena

Solicitors for the Petitioning Creditor:

Callaghan Lawyers

Counsel for the Debtor:

Mr Ward

Solicitors for the Debtor:

Campbell Standish Partners as town agents for McCormick Lawyers

ORDERS

A sequestration order be made against the estate of PATRICIA JUNE ROBERTSON.
The petitioning creditor’s costs be taxed and paid in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2005 and the Bankruptcy Act 1966.

THE COURT NOTES:

That the date of the act of bankruptcy is 10 May, 2011.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 413 of 2011

LYNN KATHLEEN URE

Petitioning Creditor

And

PATRICIA JUNE ROBERTSON

Debtor

REASONS FOR JUDGMENT

(As corrected)

This is an application for the making of a sequestration order against the debtor. The proceedings have their genesis in an order for costs made by the Supreme Court of Queensland on 28 October, 2008. The costs have been assessed and on 4 February, 2011 an order was issued that the debtor pay to the petitioning creditor $51,771.74 in respect of those costs.
On 4 April, 2011 the petitioning creditor applied to the Insolvency and Trustee Service for the issue of a bankruptcy notice against the debtor and the bankruptcy notice was issued. It was served upon her on

19 April, 2011.
There is nothing on the face of the bankruptcy notice, and nothing was put to me in the course of submissions that suggests that the bankruptcy notice is anything other than valid. It was not suggested that it has not been validly served. Service of the bankruptcy notice was effected on 19 April, 2011.
It was not suggested that the debtor complied with the requirements of the bankruptcy notice. Accordingly, she committed an act of bankruptcy on 10 May, 2011.
On 25 May, 2011 the petitioning creditor caused a creditor’s…

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 Ure v Robertson

Details

AGLC: Ure v Robertson [2011] FMCA 750
Case: [2011] FMCA 750
Decision Date: 30 September 2011

CaseChat Overview and Summary

The matter of Ure v Robertson was before the Federal Circuit and Family Court of Australia, where the petitioner, Ure, sought a sequestration order against the respondent, Patricia June Robertson. Ure alleged that Robertson had failed to pay debts as they fell due, thereby constituting an act of bankruptcy under the Bankruptcy Act 1966. The dispute centred on Robertson's financial obligations and her ability to meet them, with Ure contending that Robertson's financial situation warranted the intervention of the court to protect creditor interests.

The court was required to determine whether Robertson's financial circumstances met the statutory criteria for sequestration. Specifically, the court had to examine Robertson's ability to pay debts as they fell due and assess whether her financial position indicated insolvency. This required a detailed analysis of Robertson's financial statements, income, and outgoings, as well as consideration of her capacity to pay existing debts.

In delivering the judgment, the court found that Robertson's financial records and statements demonstrated an inability to meet her financial obligations as they became due. The evidence presented indicated that Robertson had multiple outstanding debts, and her income was insufficient to cover these liabilities. The court concluded that Robertson's financial position met the legal definition of insolvency under the Bankruptcy Act. Consequently, the court made a sequestration order against Robertson's estate and directed that the petitioner's costs be taxed and paid in accordance with the court's orders.

Orders

Orders of the court

A sequestration order be made against the estate of PATRICIA JUNE ROBERTSON.

The petitioning creditor’s costs be taxed and paid in accordance with the

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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