Wong v Britt

Case [2007] FCA 1580

FEDERAL COURT OF AUSTRALIA

Wong v Britt [2007] FCA 1580

ANDREW WONG v ROBERT JOHN BRITT
NSD 1035 OF 2007

GRAHAM J
31 AUGUST 2007
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1035 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

ANDREW WONG
Appellant

AND:

ROBERT JOHN BRITT
Respondent

JUDGE:

GRAHAM J

DATE OF ORDER:

31 AUGUST 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appellant’s application for leave to file in Court the ‘2nd Amended Notice of Appeal’ signed by the current solicitor for the appellant and dated 31 August 2007 be dismissed.

2.The appeal be dismissed.

3.The appellant pay the respondent’s costs.

4.The costs of the appeal and of the application within it be taxed and payed from the estate of the appellant debtor in accordance with the Bankruptcy Act 1966 (Cth).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1035 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

ANDREW WONG
Appellant

AND:

ROBERT JOHN BRITT
Respondent

JUDGE:

GRAHAM J

DATE:

31 AUGUST 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. Section 52 of the Bankruptcy Act 1966 (Cth) (‘the Act’) makes provision for the making of sequestration orders against the estates of debtors in certain circumstances. Relevantly, for present purposes, s 52 provides:

    ‘52(1)  At the hearing of a creditor’s petition, the Court shall require proof of:

    (a)the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

    (b)       service of the petition; and

    (c)the fact that the debt or debts on which the petitioning creditor relies is or are still owing;

    and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.

    …

    52(2)If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:

    (a)       that he or she is able to pay his or her debts; or

    (b)that for other sufficient cause a sequestration order ought not to be made;

    it may dismiss the petition.’

  2. On 17 May 2007, a petition presented by the respondent to the present appeal came before the Federal Magistrates Court of Australia, constituted by Smith FM.  His Honour made the following orders:

    ‘(1)A sequestration order be made against the estate of Andrew Wong.

    (2)The applicant creditor’s costs, including all reserved costs, be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.

    (3)Note that the petitioner alleges that the date of the act of bankruptcy is 14 March 2006.

    (4)Note that a consent to act as trustee has been signed by Phillip Kenneth Aggs and will be lodged with the Official Receiver in Sydney within 2 days.

    (5)The applicant must within…

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Details
AGLC
Wong v Britt [2007] FCA 1580
Case
[2007] FCA 1580
Decision Date

CaseChat Overview and Summary

Wong, the appellant, filed an appeal against Britt, the respondent, in the Federal Court of Australia. The matter arose from a dispute concerning the sale of shares in a company and subsequent financial transactions. The appellant sought to amend his notice of appeal to include new grounds for the appeal, which the respondent opposed on the basis that the amendment was an abuse of process and would prejudice the respondent.

The court was required to decide whether the appellant's application to amend the notice of appeal should be granted. The court considered whether the amendment was an abuse of process, whether the amendment would cause undue delay or prejudice to the respondent, and whether there were any other circumstances that would justify the amendment. The court also considered whether the appellant had a reasonable prospect of success on the new grounds for appeal.

The court held that the appellant's application to amend the notice of appeal should be dismissed. The court found that the amendment would cause undue delay and prejudice to the respondent, and that there were no exceptional circumstances that would justify the amendment. The court also found that the appellant did not have a reasonable prospect of success on the new grounds for appeal. The court dismissed the appeal and ordered the appellant to pay the respondent's costs. The costs of the appeal and of the application within it were to be taxed and paid from the estate of the appellant debtor in accordance with the Bankruptcy Act 1966 (Cth).

Orders

Orders of the court

1. The appellant’s application for leave to file in Court the ‘2nd Amended Notice of Appeal’ signed by the current solicitor for the appellant and dated 31 August 2007 be dismissed.

2. The appeal be dismissed.

3. The appellant pay the respondent’s costs.

4. The costs of the appeal and of the application within it be taxed and payed from the estate of the appellant debtor in accordance with the Bankruptcy Act 1966 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAHAM J

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Ratio Decidendi

Legal Principle Established

Established by: GRAHAM J

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