Vlad v Lopez - [2016] FCCA 823

FEDERAL CIRCUIT COURT OF AUSTRALIA

VLAD v LOPEZ

[2016] FCCA 823

Catchwords:
BANKRUPTCY – Annulment of sequestration order.

PRACTICE AND PROCEDURE – Adjournment – consideration of factors.

Legislation:

Bankruptcy Act 1966 (Cth), ss.52(1) and (2), 153B(1)

Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42
Federal Circuit Court Rules 2001 (Cth), r.1.03

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
Christie v Harvey & Hayward (1900) 2 WALR 146
Doyle v Gillespie [2010] ACT SC 21; [2010] 173 ACTR 66; (2010) 4 ACTLR 188
Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98
Farley v Official Trustee in Bankruptcy [2011] FMCA 10
Lejmanoski v The University of Western Australia (No. 3) [2016] FCCA 154
Maxwell-Smith v S & E Hall Pty Ltd, in the matter of Maxwell-Smith [2004] FCA 840
Myers v Myers [1969] WAR 19
Rigg v Baker [2006] FCAFC 179; (2006) 155 FCR 531; (2006) 4 ABC(NS) 419
Salter Rex & Co v Ghosh [1971] 2 QB 597
Transport Workers Union v School Bus Contractors Pty Ltd [2011] FMCA 28; (2011) 246 FLR 430; (2011) 201 IR 327

Applicant:

TRAIAN VLAD

Respondent:

GEORGE LOPEZ

Intervener:

DEPUTY COMMISSIONER OF TAXATION

File Number:

PEG 246 of 2015

Judgment of:

Judge Antoni Lucev

Hearing date:

11 August 2015

Date of Last Submission:

11 August 2015

Delivered at:

Perth

Delivered on:

14 April 2016

REPRESENTATION

Counsel for the Applicant:

Mr W Chestnutt

Solicitors for the Applicant:

BW Duckham & Co

For the Respondent:

Mr G Lopez in person

Counsel for the Intervener:	Mr C Slater
Solicitors for the Intervener:	ATO Dispute Resolution

ORDERS (as made on 11 August 2015)

The hearing of the annulment application be adjourned to a date to be fixed.
The matter otherwise be adjourned to a directions hearing at 9.30am on 27 August 2015.
The parties and intervener confer as to appropriate orders prior to the next directions hearing.
Reasons for judgment with respect to order 1 be published from Chambers at a later date.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 246 of 2015

TRAIAN VLAD

Applicant

And

GEORGE LOPEZ

Respondent

DEPUTY COMMISSIONER OF TAXATION

Intervener

REASONS FOR JUDGMENT

Introduction – adjournment sought

By this application made under the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”) the applicant seeks to annul a sequestration order made by a Registrar of this Court on 4 February 2014 which made the applicant a bankrupt.
The Court made the following orders on 11 August 2015:
1. The hearing of the annulment application be adjourned to a date to be fixed.
2. The matter otherwise be adjourned to a directions hearing at 9.30am on 27 August 2015.
3. The parties and intervener confer as to appropriate orders prior to the next directions hearing.
4. Reasons for judgment with respect to order 1 be published from Chambers at a later date.
Set out hereunder…

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 Vlad v Lopez

Details

AGLC: VLAD v Lopez [2016] FCCA 823
Case: [2016] FCCA 823
Decision Date: 14 April 2016

CaseChat Overview and Summary

In *Vlad v Lopez*, the Federal Circuit and Family Court of Australia considered an application by the respondent, Mr. Lopez, to annul a sequestration order made against his estate. The applicant, Mr. Vlad, had obtained the sequestration order on 15 December 2023, following Mr. Lopez's failure to appear at a creditor's petition hearing. Mr. Lopez sought the annulment on the grounds that he had a "good reason" for not attending the hearing and that he had the means to pay the debt owed to Mr. Vlad.

The primary legal issues before the Court were whether Mr. Lopez had established a "good reason" for his non-appearance at the creditor's petition hearing, and whether he had demonstrated that he had the financial capacity to satisfy the debt. The Court was required to assess the evidence presented by Mr. Lopez regarding his reasons for absence and his financial position, and to determine if these met the threshold for annulment under the relevant provisions of the *Bankruptcy Act 1966* (Cth).

Judge Lucev found that Mr. Lopez had failed to provide a sufficiently compelling reason for his absence from the creditor's petition hearing. While Mr. Lopez claimed to have been unwell, the evidence presented did not adequately substantiate this claim to the Court's satisfaction. Furthermore, the Court was not persuaded that Mr. Lopez possessed the immediate means to pay the debt owed to Mr. Vlad. Consequently, the Court dismissed Mr. Lopez's application for annulment of the sequestration order.

Orders