Yap v Granich & Associates

[2004] FCA 647

FEDERAL COURT OF AUSTRALIA

Yap v Granich And Associates [2004] FCA 647

BANKRUPTCY LAW – appeal dismissed – no question of principle

YAP CHENG SEE v GRANICH AND ASSOCIATES

W316 OF 2002

MARSHALL J
21 MAY 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W316 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	YAP CHENG SEE APPELLANT
AND:	GRANICH AND ASSOCIATES RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	21 MAY 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W316 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	YAP CHENG SEE APPELLANT
AND:	GRANICH AND ASSOCIATES RESPONDENT

JUDGE:	MARSHALL J
DATE:	21 MAY 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of McInnis F.M given on 30 October 2002: Yap v Granich and Associates [2002] FMCA 284.

2. In the judgment below, his Honour dismissed an application by the appellant made pursuant to s153B of the Bankruptcy Act 1966 (Cth) (“the Act”).

3. In the proceeding before his Honour the appellant sought an annulment of a sequestration order made against her.

4. In a careful and detailed judgment, his Honour traced the history of disputation between the appellant and the respondent.  No useful purpose is served by repeating that history.  I will only deal with that aspect that relates to the sequestration order.

5. The sequestration order was made on 10 December 1998 by Registrar Jan.  On 30 July 1999 French J refused an application to set aside the order.  His Honour’s judgment was upheld by a Full Court on 29 November 1999.  A further application to have the sequestration order annulled was dismissed by Nicholson J on 28 June 2001.

6. At [25] of his reasons McInnis F.M said that the application before him sought to re-agitate matters determined by the judgments of the Court referred to above.

7. From a reading of those judgments there is no doubt that the decision of his Honour is a correct one.

8. At [29] his Honour said:

   “It is my view that in cases of this kind it is not appropriate for the Federal Magistrates Court to continue to entertain an application of this kind where clearly the issues have been properly agitated in other courts and been the subject of considered decisions where there is in fact in the present case no additional material which would persuade me that I should exercise my discretion, which I undoubtedly have under s153B of the Bankruptcy Act”

9. Further at [31] his Honour considered the matter before him to be an abuse of process.

10. I do not see how it can be sensibly submitted that his Honour’s discretion miscarried.  It was appropriate for him to consider that he was bound not to allow an issue to be agitated which was twice dealt with adversely to the appellant by Full Courts of this Court, especially in circumstances where no new material was put before him.

11. His Honour was correct in characterising the proceeding before him as an abuse of process.  Nothing put by the appellant before me this morning has given me any reason to doubt the correctness of his Honour’s judgment.

12. Accordingly the appeal will be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:            21 May 2004

Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Appellant:
Counsel for the Respondent:	Mr B Dodd
Solicitor for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	21 May 2004
Date of Judgment:	21 May 2004