BANKRUPTCY – Review of Registrar’s sequestration orders – creditor relied upon ex parte judgment of NSW Industrial Relations Commission – compensation for unfairness upon termination of employment contract – no sufficient reasons shown for going behind judgment – mistaken description of debtor with a business name – no effect on validity of bankruptcy notice or petition – rectification of immaterial errors in order for substituted service and petition – service in accordance with substituted service order established – applications for review dismissed.

Bankruptcy Act 1966 (Cth), ss.52(1), 52(2)(b), 109(1)(a), 306, 309(2)
Federal Court Rules (Cth), O.7 r.1(3)(c), O.35 r.7(3)
Industrial Relations Act 1996 (NSW), ss.106, 106(5), 182, 182(3)(b)

Adams v Lambert (2006) 228 CLR 409
Clyne v Deputy Commissioner of Taxation (Lockhart J, 13 August 1982)
De Robillard v Carver (2007) 159 FCR 38
Madden v Electromagnetic Spectrum Pty Limited and Others [2006] NSWIRComm 354
Madden v Electromagnetic Spectrum Pty Limited & Others [2006] NSWIRComm 49
Matheson v Scottish Pacific Business Finance Pty Ltd [2005] FCA 670
Mejias v Federal Express (Australia) Pty Ltd [2007] FMCA 1817
Pattison v Hadjimouratis (2006) 155 FCR 226
Re Darby; Ex parte Pacific Publications Pty Ltd (Sundberg J, 9 November 1995)
Roskell v Snelgrove [2008] FCA 427
Totev v Sfar [2008] FCAFC 35
Vincent v State Bank of NSW (Foster J, 3 November 1995)

Wolff v Donovan (1991) 29 FCR 480

Wren v Mahony (1972) 126 CLR 212
Vok and Anor v Madden [2008] NSWIRComm 118

Applicants:

GEORGE & EVA VOK

Respondent:

BERNARD GEORGE MADDEN

File Numbers:

SYG 3166 of 2007
SYG 3167 of 2007
SYG 1371 of 2008

Judgment of:

Smith FM

Hearing dates:

26 June, 23 July, 25 August 2008

Delivered at:

Sydney

Delivered on:

25 August 2008

REPRESENTATION

Counsel for the Applicants:

Mr Vok for Mrs Vok and in person

Counsel for the Respondent:

Mr A Searle

Solicitors for the Respondent:

Hicksons Lawyers

ORDERS IN SYG 3166 of 2007

The orders made by Registrar Tesoriero on 16 July 2007 in SYG2095/2007 are corrected under Federal Court Rules O.35 r.7(3) by substituting in Order 1 reference to Bankruptcy Notice No. NN 1980/07 in lieu of NN 1979/07.
The application for review of the Registrar’s orders made on 15 January 2008 is dismissed.
The sequestration order made on 15 January 2008 against the estate of George Vok is affirmed.
The respondent creditor’s costs, including all reserved costs, but not including his costs incurred by reason of the adjourned listings on 26 June 2008 and 23 July 2008, be taxed and paid from the estate of the applicant bankrupt in the priority fixed by s.109(1)(a) of the Bankruptcy Act 1966 (Cth).

ORDERS IN SYG 3167 of 2007

The orders made by Registrar Tesoriero on 28 March 2008 in SYG3167 of 2007 are corrected under Federal Court Rules O.35 r.7(3) by including an order that paragraph 1 of the petition is amended by substituting a reference to Bankruptcy Notice No. NN 1979/07…

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 Vok v Madden

Details

AGLC: Vok v Madden [2008] FMCA 1275
Case: [2008] FMCA 1275
Decision Date: 25 August 2008

CaseChat Overview and Summary

The matter before the Federal Magistrates Court was a review of three applications brought by George Vok, Eva Vok, and both jointly, against orders made by Registrars in three separate bankruptcy cases. The respondents to all three applications were Bernard Madden, a creditor who had petitioned for sequestration orders against the Voks' estates. The applications sought to set aside sequestration orders made against George Vok and Eva Vok, as well as to set aside two bankruptcy notices that were the basis of the petitions. The Voks argued that the sequestration orders were invalid due to procedural errors, misrepresentations of their identities, and issues with the underlying judgment debt from the Industrial Relations Commission of New South Wales. The Court found that the Voks had not provided sufficient grounds to set aside the sequestration orders or the bankruptcy notices. The Court concluded that the errors in the bankruptcy notices and the description of George Vok were immaterial and did not affect the validity of the notices or the petitions. Additionally, the Court found no substantial reasons to go behind the judgment debt from the Industrial Relations Commission, as the Voks had ample opportunity to challenge the orders and had not shown any prospects of success in doing so. Consequently, the Court dismissed all three applications and affirmed the sequestration orders against George Vok and Eva Vok. The Court also ordered that Bernard Madden's costs be paid from the estates of George Vok and Eva Vok, with certain exceptions.

Orders