Weston v Larkey - [2022] FedCFamC2G 1036

Federal Circuit and Family Court of Australia
(DIVISION 2)
Weston v Larkey [2022] FedCFamC2G 1036

File number(s): SYG 1177 of 2022

Judgment of: JUDGE GIVEN

Date of judgment: 12 December 2022

Catchwords: BANKRUPTCY - summary judgment application by trustee in bankruptcy for judgment for income contributions assessed as recorded in s 139ZG certificate – default by respondent – failure of respondent to engage with proceedings

Legislation:
Bankruptcy Act 1966 (Cth) ss 139P, 139Q, 139W, 139ZG, 139ZQ

Bankruptcy Regulations 1996 (Cth) r 6.17

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04, 13.05

Cases cited: Schiffer v Pattison (2005) 215 ALR 505

Division: Division 2 General Federal Law

Number of paragraphs: 17

Date of last submission/s: 22 November 2022

Date of hearing: Decided on the papers

Place: Sydney

Counsel for the Applicant: Mr J O’Connor

Solicitor for the Applicant: Keypoint Law

The Respondent: No appearance
ORDERS

SYG 1177 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
PAUL WESTON

Applicant

AND:
GREGORY LARKEY

Respondent

order made by:

JUDGE GIVEN

DATE OF ORDER:

12 December 2022

THE COURT ORDERS THAT:
1.Pursuant to ss 139P(1), 139Q(1) and 139ZQ of the Bankruptcy Act 1966 (Cth) judgment is entered in the sum of $90,110.74 for the applicant.
2.The respondent must pay interest the subject of order 1 above to the applicant for the period 13 September 2021 to 30 November 2022, fixed in the amount of $4,777.47.
3.The respondent must pay the applicant’s costs and disbursements of and incidental to the proceedings.

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 GIVEN:

On 3 June 2015, by orders of the Court the estate of the respondent was sequestrated and the applicant was appointed as trustee of the respondent's bankrupt estate.
By an interim application filed with the Court on 21 November 2022 (application) pursuant to a grant of leave, the applicant seeks orders pursuant to ss 139P(1), 139Q(1) and 139ZQ of the Bankruptcy Act 1966 (Cth) (Act) on the basis that on 13 September 2021, the applicant assessed the respondent for income contributions in the amount of $90,110.74 (assessed amount), which remains unpaid.
In support of the application the applicant relies on the following Affidavits:
(a)Paul Gerard Weston sworn 8 August 2022 (Weston Affidavit);
(b)Mark Stephen Tierney sworn 3 November 2022 (first Tierney Affidavit); and
(c)Mark Stephen Tierney sworn 22 November 2022 (second Tierney Affidavit).
The applicant seeks to recover the assessed amount from the respondent as a debt.

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 Weston v Larkey

Details

AGLC: Weston v Larkey [2022] FedCFamC2G 1036
Case: [2022] FedCFamC2G 1036
Decision Date

CaseChat Overview and Summary

In Weston v Larkey, the applicant, Weston, sought a judgment against the respondent, Larkey, for the amount of $90,110.74 plus interest and costs. The dispute arose from a certificate issued by Weston under section 139ZG of the relevant Act, which shifted the onus of proof to Larkey. The certificate, dated 8 August 2022, specified the nature and amount of the debt. Since the proceedings were initiated, Larkey had not made any payments or provided evidence to dispute the assessment. The matter was listed for hearing but was subsequently decided on the papers due to Larkey's failure to comply with court orders, including the filing of a Notice of Address for Service.

The primary legal issues before the court involved the effect of the certificate under section 139ZG of the Act, the shift in the onus of proof, and the consequences of Larkey's failure to provide evidence or make payments. The court had to determine whether Larkey's default and non-compliance with orders justified the granting of judgment in favour of Weston. The applicant argued that Larkey's failure to file or serve any evidence opposing the relief sought warranted the entry of judgment against Larkey for the full amount, including interest.

The court concluded that Larkey's non-compliance with court orders and his failure to provide any evidence opposing the assessment constituted default. Based on these circumstances, the court found it appropriate to grant the applicant's request for judgment. The court accepted that the interest calculated by the applicant from 13 September 2021 to 30 November 2022 was accurate, bringing the total amount to $94,888.21. The court ruled in favour of the applicant and ordered judgment for the full amount, including interest.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In Schiffer v Pattison (2005) 215 ALR 505 at [77] the Federal Court noted that the effect of a certificate issued pursuant to s 139ZG of the Act is to shift the onus of proof from the trustee to the bankrupt in relation to the existence and amount of the debt claimed. The bankrupt can deny the debt and adduce evidence to show why the assessment should not be accepted.Evidence The evidence before the Court establishes the following: (a)on 8 August 2022, the applicant signed a certificate pursuant to s 139ZG of the Act setting out the nature and the amount of the debt, being $90,110.74 (see Annexure “PW-2” to the Weston Affidavit); and(b)the respondent has not made any payment to the applicant since these proceedings were commenced, or served any evidence demonstrating why the assessment made by the applicant should not be accepted (see second Tierney Affidavit at [2]). In the foregoing circumstances, the applicant says that the respondent is indebted to him and that the applicant is entitled to judgment against the respondent in the sum of $90,110.74, together with interest and costs. Interim Application On 18 November 2022, I made orders inter alia that the application be listed for hearing before me on 1 December 2022, but that said hearing event would vacate and the matter would be decided on the papers in the event that the respondent failed to file a Notice of Address for Service on or by 25 November 2022. The respondent did not file a Notice of Address for Service in time, or at all. The failure of the respondent to comply with that order, together with past non-compliances with various orders of the Court, and his failure to attend at any of the hearing fixtures throughout the life of the proceedings constitutes default for the purposes of r 13.04(2)(b)(i),(iii), (iv), (vi), and (vii) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules). The respondent being in default, the Court is empowered by r 13.05(2)(b) of the Rules to grant leave to the applicant to enter judgment against the respondent for the debt or liquidated damages and, if appropriate, costs. The applicant has calculated interest on the debt in the sum of $4,777.47. The interest claimed by the applicant on the debt is calculated from 13 September 2021 (the date the income contribution was assessed by the applicant) to 30 November 2022. In circumstances where the respondent has failed to file or serve any evidence to oppose the relief sought in the application filed 10 August 2022, the applicant submits that the Court ought to grant the relief sought in the application and enter judgment against the respondent in the sum of $94,888.21, including interest. I agree and will so order.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	SYG 1177 of 2022
Judgment of:	JUDGE GIVEN
Date of judgment:	12 December 2022
Catchwords:	BANKRUPTCY - summary judgment application by trustee in bankruptcy for judgment for income contributions assessed as recorded in s 139ZG certificate – default by respondent – failure of respondent to engage with proceedings
Legislation:	Bankruptcy Act 1966 (Cth) ss 139P, 139Q, 139W, 139ZG, 139ZQ Bankruptcy Regulations 1996 (Cth) r 6.17 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 13.04, 13.05
Cases cited:	Schiffer v Pattison (2005) 215 ALR 505
Division:	Division 2 General Federal Law
Number of paragraphs:	17
Date of last submission/s:	22 November 2022
Date of hearing:	Decided on the papers
Place:	Sydney
Counsel for the Applicant:	Mr J O’Connor
Solicitor for the Applicant:	Keypoint Law
The Respondent:	No appearance

SYG 1177 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	PAUL WESTON Applicant
AND:	GREGORY LARKEY Respondent

order made by:	JUDGE GIVEN
DATE OF ORDER:	12 December 2022