Cheung v Burness (Trustee) (No 2) [2016] FCA 1462

FEDERAL COURT OF AUSTRALIA

Cheung v Burness (Trustee) (No 2) [2016] FCA 1462 Appeal from: Capital Finance Australia Ltd v Cheung [2016] FCCA 352

File numbers: VID 255 of 2016 VID 256 of 2016 VID 257 of 2016

Judge: MOSHINSKY J

Date of judgment: 2 December 2016

Cases cited: Cheung v Burness (Trustee) [2016] FCA 1381

Date of hearing: 1 December 2016

Registry: Victoria

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Category: No Catchwords

Number of paragraphs: 18

Counsel for the Appellant/Applicant: The appellant/applicant appeared in person

Counsel for the Trustees: Mr S Waldren

Solicitor for the Trustees: Hutchinson Legal

Counsel for Capital Finance Australia Ltd: Mr GT Bigmore QC with Mr B Carew

Solicitor for Capital Finance Australia Ltd: Kemp Strang

ORDERS VID 255 of 2016

BETWEEN: KT CHEUNG Appellant

AND: PAUL ANDREW BURNESS AND MATTHEW JAMES JESS (AS TRUSTEES OF THE BANKRUPT ESTATE OF KT CHEUNG) First Respondent

CAPITAL FINANCE AUSTRALIA LTD (ACN 069 663 136) Second Respondent

JUDGE: MOSHINSKY J DATE OF ORDER: 2 DECEMBER 2016

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The orders of the Federal Circuit Court of Australia in proceeding MLG 1426/2014 made 3 March 2016 be set aside. 3. In lieu thereof: (a) IT BE DECLARED THAT, Capital Finance Australia Ltd has not established that Ms Cheung signed the guarantee and indemnity dated 10 July 2004 purportedly signed by Ms KT Cheung in favour of Capital Finance Australia Ltd; (b) IT BE ORDERED THAT, in relation to the costs of and incidental to the hearing before the Federal Circuit Court of Australia on 1, 2 and 4 December 2015: (i) There be no order as to costs as between Capital Finance Australia Ltd and Ms Cheung; (ii) Ms Cheung pay 50% of the Trustees' costs; (iii) Capital Finance Australia Ltd pay 50% of the Trustees' costs; and (c) IT BE ORDERED THAT, the costs of proceeding MLG 1426/2014 otherwise be reserved. 4. The matter be remitted to the Federal Circuit Court of Australia for the hearing and determination of any other issues in proceeding MLG 1426/2014. 5. In relation to the costs of the appeal: (a) Capital Finance Australia Ltd pay 80% of Ms Cheung's costs (if any); (b) Ms Cheung pay 50% of the Trustees' costs; (c) Capital Finance Australia Ltd pay 50% of the Trustees' costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.