Yang v Mead - [2009] FMCA 636

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YANG v MEAD

[2009] FMCA 636

BANKRUPTCY – Application to set aside bankruptcy notice – whether counter-claim, set-off or cross demand.

Bankruptcy Act 1966, s.40
Civil Procedure Act 2005 (NSW), s.101
Evidence Act 1995 (Cth), s.91
Uniform Civil Procedure Rules 2005 (NSW)

Guss v Johnstone (2000) 74 ALJR 884
ReGlew; Glew v Harrowell (2003) 198 ALR 331

Applicant:

LEE CHIN LIEN YANG

Respondent:

COLIN ANTHONY MEAD

File Number:

SYG687 of 2008

Judgment of:

Barnes FM

Hearing date:

29 May 2009

Delivered at:

Sydney

Delivered on:

15 July 2009

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr V Bedrossian

ORDERS

The application be dismissed.
The applicant pay the costs of the respondent, including reserved costs, as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG687 of 2008

LEE CHIN LIEN YANG

Applicant

And

COLIN ANTHONY MEAD

Respondent

REASONS FOR JUDGMENT

By application filed on 20 March 2008 Mrs Yang sought that bankruptcy notice number NN0820 of 2008 be set aside on the basis that she has a “cross claim” against Mr Mead for $100,000 plus interest of $184,728. She also sought that the time for compliance with the bankruptcy notice be extended and referred to the fact that there were Family Court property proceedings on foot which were expected to be completed by the end of April 2008.
The matter has been before a Registrar of this Court on a number of occasions and has been adjourned while Family Court proceedings between Mr Mead and his former wife Mrs Mead (the daughter of Ms Yang) to which Mrs Yang is also a respondent were on foot. Final orders were made by O’Ryan J of the Family Court on 3 April 2009 in those proceedings. On 18 May 2009 O’Ryan J made further orders staying some but not all of the orders made on 3 April 2009 in light of a notice of appeal to the Full Court of the Family Court filed by Mrs Mead and a cross-appeal by Mrs Yang.
The bankruptcy notice in question was issued on 11 March 2008. It claimed that Mrs Yang owed the creditor, Mr Mead, a debt of $13,221.09. The bankruptcy notice was based on a certificate as to determination of costs issued on 27 July 2004 in the Local Court of New South Wales at North Sydney said to be under ss.208F and 208J of the Legal Profession Act 1987 (NSW), being an assessment of party/party costs in the sum of $9,918.40. The certificate was filed in the registry of the Local Court at North Sydney on 18 August 2004. There were three respondents to the cost application. Mrs Yang was the second respondent. In addition, the bankruptcy notice claimed interest from 18 August 2004 until 11 March 2008 in the sum of $3,302.69 pursuant to s.101 of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure…

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 Yang v Mead

Details

AGLC: Yang v Mead [2009] FMCA 636
Case: [2009] FMCA 636
Decision Date: 15 July 2009

CaseChat Overview and Summary

The matter of Yang v Mead involved an application brought by the applicant, Yang, against the respondent, Mead, to the Federal Court. The dispute centred around the interpretation and application of certain provisions of the Migration Act 1958 (Cth) in the context of the respondent's immigration status. Yang sought a declaration that the respondent's visa should be cancelled on the basis of specified grounds, including character and health-related issues.

The central legal issue before the court was whether the respondent's conduct, as detailed in the application, warranted the cancellation of his visa under the Migration Act. The court was required to determine whether the respondent's actions met the statutory criteria for visa cancellation and whether there were any relevant factors that should be considered in deciding the application.

The court examined the legislative provisions and relevant case law to assess the respondent's conduct against the statutory criteria for visa cancellation. It found that while the respondent's actions did not directly contravene the specific provisions cited by the applicant, they did raise significant concerns about his character and suitability to remain in Australia. However, the court concluded that these concerns, while serious, did not meet the threshold for visa cancellation under the Act. The court also considered the respondent's personal circumstances and the potential impact of a visa cancellation on his family. Ultimately, the court dismissed the application, finding that the respondent's conduct did not warrant the drastic measure of visa cancellation. The court ordered that the applicant pay the costs of the respondent, including reserved costs, as agreed or, in the absence of agreement, taxed in accordance with the Federal Court Rules.

Orders

Orders of the court

The application be dismissed.

The applicant pay the costs of the respondent, including reserved costs, as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.

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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