Case: Gough v Myall Pty (2001) FCA 1692
Outcome: applied
The applicant sought to introduce fresh evidence before me providing an alternative version of events, from the applicant's perspective, on the morning of 2 May 2005 when she was putatively served with the petition. However, the whereabouts of the applicant on that morning have already been exhaustively argued before his Honour. The applicant has already, it seems, given one version of events on that morning which has been dismissed by the learned Federal Magistrate, and is now seeking to put forward another version. In my view comments of Gray J in Gough v Myall Pty (2001) FCA 1692 at par 14 are pertinent to this case, namely, 'the appeal system does not allow a party to make repeated attempts to change findings of fact by introducing evidence that could have been introduced at an earlier stage.' 40 In my view, it is prima facie unlikely, for the reasons given by his Honour, that the Court would make any finding other than that the applicant was served with the second creditor's petition at her premises at Wooloowin on the morning of 2 May 2005. His Honour was satisfied on the evidence of the process server that the applicant had been served with the second creditor's petition. On the evidence before me I would not disturb the finding of the learned Federal Magistrate on the issue of whether the applicant was actually served with the second creditor's petition. 41 The applicant has also claimed that she now has additional resources, in the form of refinancing from other creditors. It is difficult to know how to view this evidence. While it may be evidence of solvency, the fact of the matter is that, if the applicant has recently managed to obtain additional credit while she has been a bankrupt (TS p 57 ll 24-28), her actions are likely to have been in breach of s 269 of the Act and hence unlawful. I make no finding in relation to this issue. 42 In my view the case put to me by the applicant does not on its face disclose any basis upon which I would disturb the findings of the learned Federal Magistrate on appeal. His Honour heard the evidence before him, and refused to annul the bankruptcy of the applicant under s 153B(1) of the Act. The applicant has made submissions concerning comments of his Honour in refusing to exercise his discretion in the applicant's favour, including the view of his Honour that the applicant's affairs were deserving of further investigation, as she failed to disclose assets to the trustees, failed to comply with her obligations under the Act, and there was uncertainty with respect to ownership of assets. In view of the nature of the case, I am not prepared to hold that his Honour was in error in so finding. As stated succinctly by the learned authors of McDonald Henry and Meek Australian Bankruptcy Law and Practice at par 153B.0.07: 'The discretionary consideration is an important factor and is often overlooked by applicants. Despite an applicant demonstrating that the sequestration order ought not to have been made or the debtor's petition ought not to have been presented the discretionary factors may result in the application being refused.' 43 On review of the case and the evidence before me, in my view an appeal from the decision of the learned Federal Magistrate would be bound to fail. I find there are no special reasons within the meaning of O 52 r 15(2) to extend time to the applicant to file her notice of appeal from the decision of Jarrett FM. 44 Accordingly, I dismiss the application with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier J. Associate: Dated: 18 April 2006 Counsel for the Applicant: Andrew Lyons Solicitor for the Applicant: Douglas Law Solicitor for the Respondent: Hawthorne Cuppaidge &amp; Badgery Counsel for I &amp; L Securities Pty Ltd: F Gerard Forde Solicitor for I &amp; L Securities Pty Ltd: Ingwersen &amp; Lansdown Counsel for the Trustee: Cameron McKenzie Solicitor for the Trustee: Deacons Lawyers Date of Hearing: 16 March 2006 Date of Judgment: 18 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/401.html