Toogood v Gott, in the matter of Toogood [2019] FCA 1792

Toogood v Gott, in the matter of Toogood [2019] FCA 1792

The applicants failed to establish any proper basis to challenge the validity of Bankruptcy Notice BN237892. The costs debt arose from costs orders following adversarial interlocutory applications determined on the merits, and the later-conceded existence of the telephone recording did not raise a substantial question that the judgment debt was not owing or that the costs orders were affected by fraud, collusion or miscarriage of justice. The applicants also did not demonstrate real prejudice to their criminal trial from possible bankruptcy. The review application was therefore dismissed.

Jurisdiction
Australia
Judgment Date
31 October 2019
Procedural Posture
Bankruptcy Application for Review of Registrar's Decision Refusing to Set Aside a Bankruptcy Notice / Review of Registrar's Orders Made 3 April 2019 Dismissing the Applicants' Application Filed 25 March 2019; Application for Review Filed 22 April 2019
Outcome
Application dismissed with costs.
Legal Topics
['application to Set Aside Bankruptcy Notice' "review of Registrar's Decision" 'power to Look Behind Judgment Debt' 'costs Order as Judgment Debt' 'alleged Fraud, Improper Conduct or Miscarriage of Justice' 'alleged Prejudice to Criminal Proceedings']
['bankruptcy' 'insolvency' 'civil Procedure'] ['application to Set Aside Bankruptcy Notice' "review of Registrar's Decision" 'power to Look Behind Judgment Debt' 'costs Order as Judgment Debt' 'alleged Fraud, Improper Conduct or Miscarriage of Justice' 'alleged Prejudice to Criminal Proceedings']

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Procedural Posture

Bankruptcy Application for Review of Registrar's Decision Refusing to Set Aside a Bankruptcy Notice / Review of Registrar's Orders Made 3 April 2019 Dismissing the Applicants' Application Filed 25 March 2019; Application for Review Filed 22 April 2019

Legal Issues

  1. 1 ['Whether Bankruptcy Notice BN237892 should be set aside because the underlying costs judgment was said to have been obtained by fraud, improper conduct or miscarriage of justice concerning non-disclosure of a recording of a telephone conversation.' 'Whether the Court should look behind the underlying costs order to determine whether the respondents were creditors and whether the debt was truly owing.' "Whether the applicants' possible bankruptcy would prejudice their conduct of pending criminal proceedings." 'Whether the applicants made out any proper basis to challenge the validity of the bankruptcy notice.']

Ratio Decidendi

The applicants failed to establish any proper basis to challenge the validity of Bankruptcy Notice BN237892. The costs debt arose from costs orders following adversarial interlocutory applications determined on the merits, and the later-conceded existence of the telephone recording did not raise a substantial question that the judgment debt was not owing or that the costs orders were affected by fraud, collusion or miscarriage of justice. The applicants also did not demonstrate real prejudice to their criminal trial from possible bankruptcy. The review application was therefore dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application filed 22 April 2019 be dismissed.' "The applicants pay the respondents' costs of and incidental to the application." 'Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in...