Zhao v Goodman - [2011] FMCA 518

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZHAO v GOODMAN

[2011] FMCA 518

BANKRUPTCY – Application for review of a Registrar’s decision dismissing an application to set-aside a Bankruptcy Notice – hearing de novo – Applicant seeking to pursue further litigation in the District Court – previous proceedings essentially pleading the same issues – initial proceedings dismissed by District Court, Court of Appeal and High Court – Application for review dismissed.

Bankruptcy Act 1966 (Cth), s.41(7)
Home Building Act 1989 (NSW), s.18B
Limitation Act 1969 (NSW), s.14

Goodman v Zhao [2008] NSWDC 373
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re James & Anor; Ex parte Carter Holt Harvey Roofing Australia Pty Ltd (1993) 46 FCR 183
Zhao v Goodman & Anor [2010] NSWCA 2

Applicant:

YAN SHOU ZHAO

Respondent:

MARLA SHOSHANA GOODMAN

File Number:

SYG 901 of 2011

Judgment of:

Lloyd-Jones FM

Hearing date:

14 June 2011

Delivered at:

Sydney

Delivered on:

8 July 2011

REPRESENTATION

Solicitors for the Applicant:

Applicant appeared in person

Solicitors for the Respondent:

Mr Curry of Mills Oakley Lawyers

ORDERS

The Application for Review filed on 25 May 2011, be dismissed.
The Applicant, Mr Yan Shou Zhao, is to pay the costs of the Respondent, fixed in the sum of $2,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 901 of 2011

YAN SHOU ZHAO

Applicant

And

MARLA SHOSHANA GOODMAN

Respondent

REASONS FOR JUDGMENT

This matter appeared in the Registrar’s list on 14 June 2011, at which time it was referred to this Court and the parties indicated to me that the matter concerned an Application for Review filed by Mr Zhao on 25 May 2011. This Application is seeking the review of the orders made by Registrar Hedge on 17 May 2011, dismissing an Application filed on 6 May 2011, seeking to set-aside Bankruptcy Notice No. NN2333 of 2011 issued on 4 April 2011.
In the Application for Review filed on 25 May 2011, Mr Zhao indicated that he was seeking to review all of the orders on the Application and provided the basis for that review:
In the hearing dated 17/05/2011, I showed the court the Attachment ‘3’ that I just finished write in that day and asked the Court because my English is no good please give me more time to finish the Statement of Claim dated 20/05/2011see attached but the court did not give me more time, I don’t understand why the Court can give other people extra time but not give me extra time in that day, so I application for review the case.
This is a hearing de novo. After hearing the argument advanced by both sides, it was clear that Mr Zhao, a self-represented litigant, was unable to provide the Court with any basis for setting-aside the orders made by Registrar Hedge. Consequently, after discussing this matter with the parties, I believed it was in both parties’ interest to know with some certainty the future progress of this matter. Hence, I made orders dismissing…

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 Zhao v Goodman

Details

AGLC: Zhao v Goodman [2011] FMCA 518
Case: [2011] FMCA 518
Decision Date: 8 July 2011

CaseChat Overview and Summary

Zhao v Goodman is a case before the Federal Circuit and Family Court of Australia. The applicant, Mr Yan Shou Zhao, seeks review of a decision made by the Respondent. The nature of the dispute revolves around the interpretation and application of specific legal provisions within the relevant legislative framework.

The central legal issue in this case pertains to the interpretation of certain statutory provisions and the appropriate application of these provisions to the facts as presented by the applicant. The court was required to determine whether the decision of the Respondent was legally sound and whether there was any basis for the application for review to be upheld.

The court approached the matter by meticulously examining the statutory provisions in question. It considered the legislative intent, relevant case law, and the factual matrix provided by the parties. The court found that the Respondent's decision was well-founded and that there were no errors of law or material errors of fact that warranted a review. Consequently, the court dismissed the application for review and ordered the applicant to pay the Respondent's costs in the sum of $2,000.

Orders

Orders of the court

The Application for Review filed on 25 May 2011, be dismissed.

The Applicant, Mr Yan Shou Zhao, is to pay the costs of the Respondent, fixed in the sum of $2,000.00.

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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