Feldman v Tayar [2023] FCAFC 79

Feldman v Tayar [2023] FCAFC 79

The appeal was dismissed because the evidence relied upon by the appellants, whether considered individually or cumulatively, did not oblige or support a finding that the parties had made an express or implied agreement before the arbitration agreement that enforcement would be dealt with by a Mesadrin. Nor did the payments made to the respondent's wife establish that a Mesadrin had in fact occurred. The primary judge made no error in finding that the statutory requirements for sequestration were satisfied and that no 'other sufficient cause' existed under s 52(2)(b) of the Bankruptcy Act 1966 (Cth). The primary judge was also not bound to accept the second appellant's affidavit evidence...

Jurisdiction
Australia
Judgment Date
29 May 2023
Procedural Posture
Bankruptcy and Insolvency Appeal / Appeal to the Full Court From a Decision of a Single Judge Affirming Sequestration Orders Made by a Registrar
Outcome
Appeal dismissed with costs orders.
Legal Topics
['sequestration Orders' "creditor's Petition" 'other Sufficient Cause Under S 52(2)(b) of the Bankruptcy Act 1966 (cth)' 'recognition and Enforcement of Arbitral Award' 'alleged Collateral Contract to Enter Into a Mesadrin' 'failure to Cross Examine' 'indemnity Costs']
['bankruptcy and Insolvency' 'commercial Arbitration' 'costs'] ['sequestration Orders' "creditor's Petition" 'other Sufficient Cause Under S 52(2)(b) of the Bankruptcy Act 1966 (cth)' 'recognition and Enforcement of Arbitral Award' 'alleged Collateral Contract to Enter Into a Mesadrin' 'failure to Cross Examine' 'indemnity Costs']

Case Brief

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Procedural Posture

Bankruptcy and Insolvency Appeal / Appeal to the Full Court From a Decision of a Single Judge Affirming Sequestration Orders Made by a Registrar

Legal Issues

  1. 1 ['Whether the primary judge erred in not finding an express or implied agreement, entered before the arbitration agreement, that any amount awarded by the arbitrators would be dealt with by way of a Mesadrin.' "Whether there was in fact a Mesadrin which affected enforcement of the debt or supplied other sufficient cause to set aside the sequestration orders or dismiss the creditor's petition under s 52(2)(b) of the Bankruptcy Act 1966 (Cth)." "Whether the primary judge was required to accept the second appellant's affidavit evidence because he was not cross-examined." 'Whether making the sequestration orders involved a miscarriage of justice.' 'Whether indemnity costs should be ordered on the appeal.']

Ratio Decidendi

The appeal was dismissed because the evidence relied upon by the appellants, whether considered individually or cumulatively, did not oblige or support a finding that the parties had made an express or implied agreement before the arbitration agreement that enforcement would be dealt with by a Mesadrin. Nor did the payments made to the respondent's wife establish that a Mesadrin had in fact occurred. The primary judge made no error in finding that the statutory requirements for sequestration were satisfied and that no 'other sufficient cause' existed under s 52(2)(b) of the Bankruptcy Act 1966 (Cth). The primary judge was also not bound to accept the second appellant's affidavit evidence...

Court Disposition

Appeal dismissed with costs orders.

Orders

  • ['The appeal be dismissed.' "The respondent's costs be paid on an indemnity basis from the estates of the appellants in accordance with the Bankruptcy Act 1966 (Cth)." "The trustees' costs of the appeal and of the review application before the primary judge be paid from the estates of the appellants in accordance...