Ali v Retail Decisions Pty Ltd [2012] FCA 1130

FEDERAL COURT OF AUSTRALIA

Ali v Retail Decisions Pty Ltd [2012] FCA 1130 Citation: Ali v Retail Decisions Pty Ltd [2012] FCA 1130

Appeal from: Retail Decisions Pty Ltd v Ali [2011] FMCA 726

Parties: RASHID ALI v RETAIL DECISIONS PTY LTD (ACN 005 970 570) T/AS MOTORPASS

File number: VID 1180 of 2011

Judge: BROMBERG J

Date of judgment: 17 October 2012

Catchwords: BANKRUPTCY AND INSOLVENCY – appeal from decision of Federal Magistrate to uphold a sequestration order against the appellant's estate – two staged approach to determining existence of debt discussed – whether Federal Magistrate fell into error by imposing an unwarranted burden of proof upon the appellant – error found – solvency – whether an inference should have been drawn from a valuation of appellant's properties that those properties were readily saleable – onus on appellant to make out solvency – no error by Federal Magistrate in this regard – sequestration order set aside. EVIDENCE – onus of proof – burden of proof in relation to a challenge to the existence of a debt discussed – whether an unwarranted burden of proof was imposed upon the appellant.

Legislation: Bankruptcy Act 1966 (Cth) ss 52(1)(c), 52(2) Evidence Act 1995 (Cth) s 140 Federal Court of Australia Act 1976 (Cth) s 24(1)(d)

Cases cited: Retail Decisions Pty Ltd v Ali [2011] FMCA 726 Allesch v Maunz (2000) 203 CLR 172 Wolff v Donovan (1991) 29 FCR 480 Joossé v Commissioner of Taxation (2004) 137 FCR 576 Wren v Mahony (1972) 126 CLR 212 Menzies v Paccar Financial Pty Ltd [2011] FCA 460 Eykamp v Deputy Commissioner of Taxation [2010] FCA 797 International Alpaca Management Pty Ltd v Ensor [1999] FCA 72