Lowbeer v De Varda [2018] FCAFC 115

Lowbeer v De Varda [2018] FCAFC 115

There was no error in the primary judge's finding that no debt was due and payable to Mr Lowbeer, as the relevant costs had been paid by the Congregation and not incurred by Mr Lowbeer personally. The requirements for sequestration orders were therefore not met; the creditor's petitions based on alleged debts behind the judgments did not represent a true debt due to the petitioning creditor.

Parties
Appellant: John Joseph Lowbeer; Respondent: Joseph De Varda; Respondent: Samuel Tov-Lev
Jurisdiction
Australia
Judgment Date
24 July 2018
Procedural Posture
Appeal / Judgment
Outcome
appeals dismissed
Legal Topics
Creditor's Petitions, Equitable Subrogation, Costs Orders, Indemnity, Proof of Debt, Assignment
Bankruptcy and Insolvency Equity Creditor's Petitions Equitable Subrogation Costs Orders Indemnity Proof of Debt Assignment

Case Brief

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Parties

John Joseph Lowbeer

Appellant

Joseph De Varda

Respondent

Samuel Tov-Lev

Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the appellant was liable for legal costs incurred in proceedings where costs order was obtained
  2. 2 Whether payment by third party (Congregation) extinguished the debt due to appellant for purposes of creditor's petition
  3. 3 Whether equitable subrogation applied to allow appellant to claim a debt after indemnity

Ratio Decidendi

There was no error in the primary judge's finding that no debt was due and payable to Mr Lowbeer, as the relevant costs had been paid by the Congregation and not incurred by Mr Lowbeer personally. The requirements for sequestration orders were therefore not met; the creditor's petitions based on alleged debts behind the judgments did not represent a true debt due to the petitioning creditor.

Court Disposition

appeals dismissed

Orders

  • The appeal be dismissed.
  • The appellant do pay the respondents' costs of the appeal, confined to those costs which may be recovered by a litigant in person.