Yin v Do - [2016] FCCA 697

FEDERAL CIRCUIT COURT OF AUSTRALIA

YIN v DO

[2016] FCCA 697

Catchwords:
BANKRUPTCY LAW – Bankruptcy Notice – disputes receiving Bankruptcy Notice or Judgment founding the Act of Bankruptcy.

Legislation:
Bankruptcy Act 1966 (Cth), ss.40(1)(g); 41(2); 306

Evidence Act1995 (Cth), s.140

Federal Circuit Court (Bankruptcy) Rules2006 (Cth), r. 4.02(1)

R v Brown & Dunn (1893) 6 R 67

Briginshaw v Briginshaw(1938) 60 CLR 336, at 362.

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Ors[1992] HCA 66;
Adams v Lambert(2006) 228 CLR 409

Tov-Lev v Lowbeer (No 2) [2014]
McNally v Fazio (No. 3) [2016] FCCA 215

Applicant:

SODALY YIN

Respondent:

NGOC TIEN DO

File Number:

SYG 2458 of 2015

Judgment of:

Registrar Chuan Ng

Hearing date:

27, 29 January 2016

Date of Last Submission:

29 January 2016

Delivered at:

Sydney

Delivered on:

9 March 2016

REPRESENTATION

For the Applicant:

Mr Argy, Solicitor

For the Respondent:

In person

ORDERS

The Creditors’ Petitions, variously filed on 7 September 2015, 2 November 2015, and 18 January 2016 by the Applicant be dismissed.

No order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2458 of 2015

SODALY YIN

Applicant

And

NGOC TIEN DO

Respondent

REASONS FOR DECISION

This is a Creditor’s Petition which was last before me as the Presiding Registrar on 29 January 2016.
For the reasons identified below, I am not satisfied on the balance of probabilities that an essential requirement, namely that the Judgment founding the Bankruptcy Notice has been served on the Respondent under Regulation 16.01 of the Bankruptcy Regulations 1996, has been complied with.
Accordingly, I dismiss the various versions of the Creditor’s Petitions filed by the Applicant against the Respondent. I also make no order as to costs.

Court history

The matter has been in the Bankruptcy List on several occasions: twice before Registrar Morgan for an application for substituted service of the Creditor’s Petition on 21 and 28 October 2015; and before me as the Presiding Registrar on 25 November 2015; 27 January 2016; and 29 January 2016. On the last two occasions, the Respondent gave sworn evidence and was cross-examined. I will return to these events in due course.

Background

On 2 February 2016, the Applicant obtained a Judgment against the Respondent at Fairfield Local Court for the amount of $99,532.19.
On 19 May 2016, the Applicant’s solicitor, Anthony Romeo, obtained a Bankruptcy Notice (BN 181033/2015) from AFSA based on the Judgment.
On 20 May 2015, the Applicant’s solicitor purported to serve the Bankruptcy Notice attaching a copy of the Judgment by post, pursuant to Regulation 16.01 of the Bankruptcy Regulations. In his Affidavit sworn approximately 4 months later on 7 September 2015, the Applicant’s solicitor deposed:
“1. On Wednesday the 20th of May, 2015, I served Ngoc Tien Do with a copy of Bankruptcy Notice No. 181033 signed by an Officer authorised by an Official Receiver, together with a copy of the judgment dated 2 February 2015 obtained by the…

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 Yin v Do

Details

AGLC: Yin v Do [2016] FCCA 697
Case: [2016] FCCA 697
Decision Date: 9 March 2016

CaseChat Overview and Summary

In *Yin v Do*, the parties were the plaintiff, Ms Yin, and the defendant, Mr Do. The dispute concerned an application by the plaintiff to set aside a default judgment entered against the defendant. The matter came before Registrar Chuan Ng in the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the plaintiff had established sufficient grounds to set aside the default judgment. This required the Court to consider the principles governing applications to set aside default judgments, including whether the plaintiff had a meritorious defence to the original claim and whether the plaintiff had provided a satisfactory explanation for the delay in filing a defence.

Registrar Ng applied the well-established principles for setting aside default judgments, which require a two-stage inquiry. First, the applicant must show a meritorious defence. Second, the applicant must provide a reasonable explanation for the failure to file a defence within the prescribed time. In this instance, the Registrar found that the plaintiff had failed to satisfy both limbs of the test. The plaintiff did not provide a sufficiently detailed or credible explanation for the significant delay in filing a defence, nor did the plaintiff demonstrate that they had a meritorious defence to the underlying claim.

Consequently, the Registrar dismissed the plaintiff's application to set aside the default judgment.

Orders