Yap v Granich & Associates

Case [2001] FCA 799

FEDERAL COURT OF AUSTRALIA

Yap v Granich & Associates [2001] FCA 799

BANKRUTPCY – application for annulment – allegations of fraud in prior proceedings on which act of bankruptcy based – whether application precluded by doctrines of res judicata, issue estoppel or Anshun estoppel – whether any fresh evidence of fraud

Bankruptcy Act 1966 (Cth) s 153B

Miles v The Shell Co of Australia (Sundberg J, 9 June 1998, unreported) cited
Wren v Mahony (1972) 126 CLR 212 cited
Arnold v National Westminster Bank plc [1991] 2 AC 93 cited
Tiufino v Warland [2000] 50 NSWLR 104 cited
Pollnow v Armstrong [2000] NSWCA 245 cited
Jackson v Goldsmith (1950) 81 CLR 446 cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 cited
Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 cited

Macquarie Bank Ltd v National Mutual Life Assn of Australasia Ltd (1996) 40 NSWLR 543 cited

Onerati v Phillips Construction Pty Ltd (in liq) (1989) 16 NSWLR 730 cited
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 cited

Maganja v Arthur [1984] 3 NSWLR 561 cited

Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd (recs and mgrs apptd) (in liq) (1993) 43 FCR 510 cited

Brunsden v Humphrey (1884) 14 QBD 141 at 148; [1881 – 85] All ER Rep 357 cited
Van Amstel v Country Roads Board [1961] VR 780 cited

Blair v Curran (1939) 62 CLR 464 cited
Queensland Trustees Ltd v Cmr of Stamp Duties (Qld) (1956) 96 CLR 131 cited
Ramsay v Pigram (1968) 118 CLR 271 cited
Egri v DRG Australia Ltd (1988) 19 NSWLR 600 cited
Heid v Connell Investments Pty Ltd (1989) 16 NSWLR 629 cited
O’Donel v Cmr for Road Transport and Tramways (NSW) (1938) 59 CLR 744 cited
New Brunswick Railway Co v British and French Trust Corp Ltd [1939] AC 1 cited
Henderson v Henderson [1843 – 60] All ER Rep 378 cited
Ebber v Isager [1995] 1 Qd R 150 cited
Duchess of Kingston’s Case [1775] All ER Rep 263 cited
Meddowcroft v Huguenin (1844) 4 Moo PCC 386 cited
Perry v Meddowcroft (1846) 10 Beav 122; 50 ER 529 cited
Weaver v Law Society of New South Wales (1979) 142 CLR 201 cited
Director of Public Prosecutions v Humphrys [1977] AC 1 cited
Bourke v Beneficial Finance (1993) 124 ALR 716 referred to
Monroe Schneider Associates (Inc) v No 1 Raberem Pty Ltd (No 2) (1992) 37 FCR 234 cited

YAP CHENG SEE v GRANICH & ASSOCIATES
W 7089 of 2000

RD NICHOLSON J
28 JUNE 2001
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W 7089 of 2000

BETWEEN:

YAP CHENG SEE
APPLICANT

AND:

GRANICH & ASSOCIATES
RESPONDENT

JUDGE:

RD NICHOLSON J

DATE OF ORDER:

28 JUNE 2001

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The respondent’s motion dated 17 November 2000 be granted. 

2.The applicant’s application for annulment of her bankruptcy be struck…

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Details
AGLC
Yap v Granich & Associates [2001] FCA 799
Case
[2001] FCA 799
Decision Date

CaseChat Overview and Summary

Yap sought to annul a bankruptcy order by arguing that she was not given access to a transcript of a prior proceeding, which she claimed was fraudulently obtained. Granich & Associates, the trustee in bankruptcy, opposed the application. The primary legal issue was whether the concealment of the transcript constituted grounds to set aside a prior judgment and, consequently, the bankruptcy order. The court assessed whether there was evidence of fraud in the obtaining of the prior judgment and whether the lack of access to the transcript constituted a basis for annulment.

The court found that Yap did not provide sufficient evidence to demonstrate that the concealment of the transcript from her resulted in the prior judgment being obtained fraudulently. The judge concluded that there was no basis for the court to look behind the judgments from the prior proceedings. The court reasoned that without evidence of fraud, the failure to provide the transcript did not warrant annulment of the bankruptcy order. Consequently, the application to annul the bankruptcy order was dismissed.

The orders of the court included granting the respondent’s motion, striking out Yap’s application for annulment of her bankruptcy, and requiring Yap to pay the respondent’s costs of the application. These orders reflected the court’s determination that Yap’s application lacked merit and that the bankruptcy order should stand.

Orders

Orders of the court

1. The respondent’s motion dated 17 November 2000 be granted.

2. The applicant’s application for annulment of her bankruptcy be struck out.

3. The applicant pay the respondent’s costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Additionally, I accept the submission for the respondent that the applicant’s case has not shown how the alleged concealment of the transcript from her has resulted in the judgment given in action 1536/89 being obtained fraudulently. Conclusion For these reasons I consider that there is no basis for the Court looking behind the judgments obtained in the prior proceedings. The applicant’s application therefore fails.

Ratio Decidendi

Legal Principle Established

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