Weeden v Rambaldi - [2012] FCA 552

FEDERAL COURT OF AUSTRALIA
Weeden v Rambaldi [2012] FCA 552

Citation: Weeden v Rambaldi [2012] FCA 552

Parties:
PHILIP CHARLES WEEDEN v GESS MICHELE RAMBALDI, ANDREW REGINALD YEO (AS JOINT TRUSTEES OF THE PROPERTY OF PHILIP CHARLES WEEDEN, A BANKRUPT), INSPECTOR-GENERAL IN BANKRUPTCY and OFFICIAL RECEIVER IN BANKRUPTCY

ANDREW REGINALD YEO, GESS MICHELE RAMBALDI (AS TRUSTEES OF THE PROPERTIES OF PHILIP CHARLES WEEDEN, A BANKRUPT) v PHILIP CHARLES WEEDEN, INSPECTOR-GENERAL IN BANKRUPTCY AND OFFICIAL RECEIVER IN BANKRUPTCY

File number(s): VID 744 of 2011
VID 859 of 2011

Judge: BROMBERG J

Date of judgment: 29 May 2012

Catchwords: BANKRUPTCY – whether notices of objection to discharge filed pursuant to s 149B of the Bankruptcy Act 1966 (Cth) valid – whether notices of contribution assessment made pursuant to s 139(1)(c) of the Bankruptcy Act valid – whether notices were invalid because made by a joint trustee acting alone – unanimous concurrence required for act of joint trustee – whether joint trustees were appointed or a sole trustee appointed by meeting of creditors – s 257 of Bankruptcy Act and presumption that minutes of meeting provide prima facie evidence of meeting – whether evidence of concurrence of joint trustees – whether s 306(1) of the Bankruptcy Act validates the act of a joint trustee acting alone, where the consent of other trustee is later given, in relation to the making and notification of an assessment pursuant to s 139W(1) of the Bankruptcy Act and in relation to the filing of an objection to discharge pursuant to s 149B of the Bankruptcy Act – whether a formal defect or irregularity within the meaning of s 306(1)

Legislation: Bankruptcy Act 1966 (Cth) ss 64Z, 139(1)(c), 139W(1), 149B, 158, 181, 257, 306, 306(1)

Cases cited: Re Gudgeon and Another; Ex parte Pegler and Another (1969) 13 FLR 350
Beath v Kousal [2010] VSC 24
Sky v Body (1970) 92 WN (NSW) 934
In the Estate of William Just, deceased (No.1) (1973) 7 SASR 508
O’Brien v Sheahan [2005] FCAFC 59
Nilant v Macchia (2000) 104 FCR 238
Adams v Lambert (2006) 228 CLR 409

Date of hearing: 14 November 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 66

VID 744 of 2011

Counsel for the Applicant: Mr GT Bigmore QC with Ms CG Rome-Sievers

Solicitor for the Applicant: Tisher Liner & Co

Counsel for the First and Second Respondents: Mr J Peters SC with Mr B Gibson

Solicitor for the First and Second Respondents: SBA Law

Counsel for the Third and Fourth Respondents: Ms C Gobbo

Solicitor for the Third and Fourth Respondents: Australian Government Solicitor

VID 859 of 2011

Counsel for the Applicants: Mr J Peters SC with Mr B Gibson

Solicitor for the Applicants: SBA Law

Counsel for the First Respondent: Mr GT Bigmore QC with Ms CG Rome-Sievers

Solicitor for the First Respondent: Tisher Liner & Co

Counsel for the Second and Third Respondents: Ms C Gobbo

Solicitor for the Second and Third Respondents: Australian Government Solicitor

IN THE FEDERAL…

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 Weeden v Rambaldi

Details

AGLC: Weeden v Rambaldi [2012] FCA 552
Case: [2012] FCA 552
Decision Date: 29 May 2012

CaseChat Overview and Summary

The case of Weeden v Rambaldi involved a dispute concerning the validity of notices of objection to discharge and notices of contribution assessment filed by trustees in bankruptcy. The dispute was heard in the Federal Court of Australia. The primary issue before the court was whether the notices of objection to discharge and notices of contribution assessment were validly made by a joint trustee acting alone, or whether a unanimous concurrence of both joint trustees was required. This question arose in the context of the interpretation of sections 139, 139B, 139W, 149B, 257, 306, and 307 of the Bankruptcy Act 1966 (Cth).

The court was required to determine whether the notices in question were invalid due to the absence of unanimous concurrence from the joint trustees, as required by section 257 of the Bankruptcy Act. Furthermore, the court had to consider whether the minutes of the meeting of creditors, which appointed the joint trustees, provided prima facie evidence of the appointment of a sole trustee or joint trustees. Another issue was whether section 306(1) of the Bankruptcy Act could validate the act of a joint trustee acting alone, if the consent of the other trustee was later given, in relation to the making and notification of an assessment and the filing of an objection to discharge.

In reaching its decision, the court considered the provisions of the Bankruptcy Act and relevant case law. The court found that the notices in question were not invalid solely due to the absence of unanimous concurrence from the joint trustees, as section 306(1) of the Bankruptcy Act could validate the act of a joint trustee acting alone, if the consent of the other trustee was later given. The court concluded that the notices of objection to discharge and notices of contribution assessment were valid, and dismissed the applicant's application. The court further ordered that the National Personal Insolvency Index be amended to show that Andrew Reginald Yeo was appointed as the sole trustee of the property of the first respondent on 19 March 2007.

Orders

Orders of the court

1. The applicant’s application be dismissed.

2. In the event that the question of costs is disputed, each of the parties file and serve its submission as to costs within 14 days of the making of this order.

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

1. The second and third respondents amend the National Personal Insolvency Index to show that Andrew Reginald Yeo was appointed as the sole trustee of the property of the first respondent on 19 March 2007.

2. In the event that the question of costs is disputed, each of the parties file and serve its submission as to costs within 14 days of the making of this order.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Weeden v Rambaldi [2012] FCA 552
Parties:		PHILIP CHARLES WEEDEN v GESS MICHELE RAMBALDI, ANDREW REGINALD YEO (AS JOINT TRUSTEES OF THE PROPERTY OF PHILIP CHARLES WEEDEN, A BANKRUPT), INSPECTOR-GENERAL IN BANKRUPTCY and OFFICIAL RECEIVER IN BANKRUPTCY ANDREW REGINALD YEO, GESS MICHELE RAMBALDI (AS TRUSTEES OF THE PROPERTIES OF PHILIP CHARLES WEEDEN, A BANKRUPT) v PHILIP CHARLES WEEDEN, INSPECTOR-GENERAL IN BANKRUPTCY AND OFFICIAL RECEIVER IN BANKRUPTCY
File number(s):		VID 744 of 2011 VID 859 of 2011
Judge:		BROMBERG J
Date of judgment:		29 May 2012
Catchwords:		BANKRUPTCY – whether notices of objection to discharge filed pursuant to s 149B of the Bankruptcy Act 1966 (Cth) valid – whether notices of contribution assessment made pursuant to s 139(1)(c) of the Bankruptcy Act valid – whether notices were invalid because made by a joint trustee acting alone – unanimous concurrence required for act of joint trustee – whether joint trustees were appointed or a sole trustee appointed by meeting of creditors – s 257 of Bankruptcy Act and presumption that minutes of meeting provide prima facie evidence of meeting – whether evidence of concurrence of joint trustees – whether s 306(1) of the Bankruptcy Act validates the act of a joint trustee acting alone, where the consent of other trustee is later given, in relation to the making and notification of an assessment pursuant to s 139W(1) of the Bankruptcy Act and in relation to the filing of an objection to discharge pursuant to s 149B of the Bankruptcy Act – whether a formal defect or irregularity within the meaning of s 306(1)
Legislation:		Bankruptcy Act 1966 (Cth) ss 64Z, 139(1)(c), 139W(1), 149B, 158, 181, 257, 306, 306(1)
Cases cited:		Re Gudgeon and Another; Ex parte Pegler and Another (1969) 13 FLR 350 Beath v Kousal [2010] VSC 24 Sky v Body (1970) 92 WN (NSW) 934 In the Estate of William Just, deceased (No.1) (1973) 7 SASR 508 O’Brien v Sheahan [2005] FCAFC 59 Nilant v Macchia (2000) 104 FCR 238 Adams v Lambert (2006) 228 CLR 409
Date of hearing:	14 November 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	66
VID 744 of 2011
Counsel for the Applicant:	Mr GT Bigmore QC with Ms CG Rome-Sievers
Solicitor for the Applicant:	Tisher Liner & Co
Counsel for the First and Second Respondents:	Mr J Peters SC with Mr B Gibson
Solicitor for the First and Second Respondents:	SBA Law
Counsel for the Third and Fourth Respondents:	Ms C Gobbo
Solicitor for the Third and Fourth Respondents:	Australian Government Solicitor
VID 859 of 2011
Counsel for the Applicants:	Mr J Peters SC with Mr B Gibson
Solicitor for the Applicants:	SBA Law
Counsel for the First Respondent:	Mr GT Bigmore QC with Ms CG Rome-Sievers
Solicitor for the First Respondent:	Tisher Liner & Co
Counsel for the Second and Third Respondents:	Ms C Gobbo
Solicitor for the Second and Third Respondents:	Australian Government Solicitor