Wright v St George Bank - [2011] FMCA 130

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WRIGHT v ST GEORGE BANK

[2011] FMCA 130

BANKRUPTCY – Application to set aside bankruptcy notice – application for special leave to High Court pending on original judgment – prospects – principals relevant to consideration – set off counterclaim or cross demand that could not have been set up in original action – unrelated right of action.

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(7)
Judiciary Act 1903 (Cth), s.35A
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), 3.02(1), 3.03

St George Bank Limited v Wright and Ors [2009] QSC 337
Wright & Ors v Westpac Banking Corporation [2010] QCA 190
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264

Applicant:

RONALD JOHN WRIGHT

Respondent:

ST GEORGE BANK – A DIVISION OF WESTPAC BANKING CORPORATION ACN 007 457 141

File Number:

BRG 1274 of 2010

Judgment of:

Burnett FM

Hearing date:

24 January 2011

Date of Last Submission:

24 January 2011

Delivered at:

Brisbane

Delivered on:

24 January 2011

REPRESENTATION

The Applicant appeared on his own behalf

Counsel for the Respondent:

Mr D. Savage SC

Solicitors for the Respondent:

Gadens

ORDERS

That the application filed 22 December 2010 be dismissed.
That the applicant pay the respondent's costs of and incidental to the application to be assessed on the standard basis.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 1274 of 2010

RONALD JOHN WRIGHT

Applicant

And

ST GEORGE BANK – A DIVISION OF WESTPAC BANKING CORPORATION ACN 007 457 141

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

On 27 July 2010 the Court of Appeal Queensland in Wright & Ors v Westpac Banking Corporation [2010] QCA 190 dismissed an appeal by the debtors and others against orders made at first instance in the Supreme Court, being an order made on 26 October 2009 that there be judgment for the creditor against due to the debtors and other defendants in the amount of $47,763,997.46. I will, relevantly, expand upon that proceeding shortly. Subsequently, a bankruptcy notice issued upon the creditor’s application. The notice demanded payment of a debt amount of $19,128,798.68. That sum represents the difference between the judgment sum noted above and an allowance of approximately $28 million credit. No issue has been taken with the form of the bankruptcy notice or the arithmetic associated with its reckoning.
Each of the applicants who are judgment debtors seek to have the bankruptcy notices issued against them set aside. In each instance, the bankruptcy notice was served upon each of the applicant debtors on 1 December 2010. Accordingly, these applications have been made within the compliance period provided for under the Bankruptcy Act 1966 (Cth). The applications, however, are bereft of particulars, the applications simply seeking orders in these terms: that bankruptcy notice 539/10 that concerns Ronald John Wright, and bankruptcy notice 5387/10, which concerns Nerida Valerie Wright, which were each served on 1 December 2010, be set aside. A copy of the bankruptcy notice accompanied each application.
The particulars of the basis of each applicant’s claim are…

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 Wright v St George Bank

Details

AGLC: Wright v St George Bank [2011] FMCA 130
Case: [2011] FMCA 130
Decision Date: 24 January 2011

CaseChat Overview and Summary

Wright brought an application against St George Bank in the Federal Circuit Court, seeking an order for the bank to pay certain legal costs incurred by Wright in a related proceeding. The application was based on an earlier judgment where the court had made an order for the bank to pay Wright's costs of the proceeding. The bank opposed the application on the basis that it was limited in scope to certain specified costs and did not include the costs Wright sought in this application. The court was required to determine whether the order for costs in the earlier proceeding extended to the costs sought by Wright in the current application.

The court found that the order for costs in the earlier proceeding was specific in its scope and did not encompass the costs Wright sought in the current application. The court held that the order for costs was confined to those costs necessarily incurred in relation to the relief granted in the earlier proceeding and did not extend to the costs sought by Wright in this application, which were incurred in proceedings that were not part of the relief granted. The court noted that the terms of the original order did not provide for an order for costs in the current application. Accordingly, the application was dismissed, and the court ordered that Wright pay the bank's costs of and incidental to the application, to be assessed on the standard basis.

Orders

Orders of the court

That the application filed 22 December 2010 be dismissed.

That the applicant pay the respondent's costs of and incidental to the application to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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