Weir v Storry - [2022] FedCFamC2G 183

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Weir v Storry [2022] FedCFamC2G 183

File number(s): BRG 555 of 2021

Judgment of: JUDGE EGAN

Date of judgment: 18 March 2022

Catchwords: BANKRUPTCY – application for sequestration order – judgement debt unpaid – no basis for stay of proceeding pending hearing and determination of appeal which has no prospect of success – sequestration order made

Legislation: Bankruptcy Act 1966 (Cth) ss. 41(6A) and (6C), 156A.

Division: Division 2 General Federal Law

Number of paragraphs: 13

Date of last submission/s: 17 March 2022

Date of hearing: 17 March 2022

Solicitor for the Applicant: SLF Lawyers

Counsel for the Respondent: The Respondent appeared in person
ORDERS

BRG 555 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
JONATHAN DAVID WEIR

Applicant

AND:
VENETIA LOUISE STORRY

Respondent

ORDER MADE BY:

JUDGE EGAN

DATE OF ORDER:

18 MARCH 2022

IT IS ORDERED THAT
1.A sequestration order is made against the estate of Venetia Louise Storry.
2.The Petitioning Creditor’s costs be paid out of the bankrupt’s estate in accordance with the priority to which he is entitled as agreed or taxed in accordance with the Bankruptcy Act 1966 (Cth).

AND IT IS NOTED THAT
(1)A consent to act as trustee signed by David Lewis Clout has been filed under s. 156A of the Bankruptcy Act 1966 (Cth).
(2)The act of bankruptcy occurred on 1 November 2021.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction

The application before the Court was for the making of a sequestration order against the estate of the respondent.
The applicant was the judgement creditor in Magistrates Court proceedings instituted on his behalf, against the respondent, on 24 May 2017.
As at the date of the court hearing, the respondent had not filed any document in response to the application. At the hearing, the Court admitted into evidence as Exhibit 1 an amended document dated 14 March 2022, which the applicant advised the Court had not been accepted for filing due to its lack of form. On its face, that document is of no obvious significance.
The relevant litigation history involving the applicant and the respondent was as follows:
(a)On 4 December 2020, in an order made by one Acting Magistrate Smith, judgement was entered against the respondent for the total amount of $39,506.86.
(b)On 15 January 2021 the respondent filed an appeal from the judgement to the Queensland Court of Appeal;
(c)On 16 February 2021, Justice Sofronoff of the Court of Appeal dismissed the respondent’s appeal;
(d)On 15 October the respondent…

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 Weir v Storry

Details

AGLC: Weir v Storry [2022] FedCFamC2G 183
Case: [2022] FedCFamC2G 183
Decision Date

CaseChat Overview and Summary

The matter of Weir v Storry before Judge Egan in the Federal Circuit and Family Court of Australia (Division 2) concerned an application for a sequestration order against the estate of Venetia Louise Storry, the respondent. Jonathan David Weir, the applicant, was the judgment creditor, having obtained a judgment against Storry in the Magistrates Court of Queensland for the amount of $39,506.86. The application was made following the respondent's failure to pay the judgment debt and her default in responding to the application. The legal issues in the case involved whether the Court should stay the hearing and determination of the sequestration application pending the outcome of other appeal proceedings, and whether the respondent had any valid grounds for opposing the making of a sequestration order.

The Court considered the arguments presented by the respondent that the proceedings should be stayed pending the hearing and determination of other appeals and stay applications. The Court found that the respondent had exhausted all her avenues of appeal against the original judgment, and any further appeals would have no prospect of success. The respondent had failed to provide any evidence that would constitute a basis for a stay order. The Court also considered the affidavit material filed by the applicant, which documented the service of a Bankruptcy Notice and the respondent's failure to comply with its requirements. The Court found that the respondent had failed to satisfy it that she had a counter-claim, set-off or cross demand equal to, or more than, the sum claimed in the Bankruptcy Notice. The Court was satisfied that the judgment sum remained unpaid, and that the respondent was unable to pay her debts as and when they fell due.

Accordingly, the Court made a sequestration order against the estate of Venetia Louise Storry. The Court found that the applicant had established all procedural matters required to be attended to by him, and that the respondent was duly served with all relevant documents. The Court also ordered that the petitioning creditor's costs be paid out of the bankrupt's estate in accordance with the priority to which he is entitled as agreed or taxed in accordance with the Bankruptcy Act 1966 (Cth). The form of the order was subject to entry in the Court's records, and the Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors or to record a variation to the order.

Orders