All Options Pty Ltd v Mathews - [2021] FCCA 236

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALL OPTIONS PTY LTD v MATHEWS

[2021] FCCA 236

Catchwords:
BANKRUPTCY – application for review of a Registrars decision – directions hearing – stay of sequestration order – where evidence is scant – where upon current affidavit material, application must fail – application for stay refused – matter adjourned for final hearing.

Applicant:

ALL OPTIONS PTY LTD (ACN 123 320 169)

Respondent:

DARREN MATHEWS

File Number:

MLG 4442 of 2019

Judgment of:

Judge A. Kelly

Hearing date:

9 February 2021

Date of Last Submission:

9 February 2021

Delivered at:

Melbourne

Delivered on:

9 February 2021

REPRESENTATION

Counsel for the Applicant:

Ms L. Limone

Solicitor for the Applicant:

Mr M. Nicholls

Respondent:

In person

ORDERS

The respondent (Darren Mathews) file and serve any further affidavit material in support of his application for review by 4.00pm on 9 March 2021.
The applicant (All Options Pty Ltd) provide affidavit material in reply by 4.00pm on 23 March 2021.
The matter be listed for hearing at 10.00am on Wednesday, 26 April 2021.
The application for a stay of the sequestration order be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 4442 of 2019

ALL OPTIONS PTY LTD (ACN 123 320 169)

Applicant

And

DARREN MATHEWS

Respondent

REASONS FOR JUDGMENT

(Revised from ex tempore reasons)

On 15 October 2020, an order was made for the sequestration of the respondent debtor’s estate.
By application for review filed on 10 November 2020, the bankrupt seeks an order for the review of the sequestration order, for the setting aside of that order and for the enforcement and administration of the sequestration order to be stayed, pending determination of that review.
In an affidavit affirmed by the debtor on 2 November 2020 in support of his application for review, he deposed as follows:
I confirm that I have submitted a form B3A today to the Federal Court via e-lodgement and that this review is within the 21-day period of which I must submit this application.
In the period November 2020 to date, the bankrupt has filed no further evidence in support of his application and, in my opinion, there is force in the submission of the petitioning creditor that there have already been significant delays in this matter.
As matters presently stand, the debt upon which the petitioning creditor has relied has been established by a judgment of the Federal Court of Australia[1] and affirmed by a decision of the Full Court of the Federal Court.[2] Nothing is presently demonstrated by the bankrupt as to why there are any grounds upon which the present sequestration order should be stayed. The application for a stay is refused.
[1] All Options Pty Ltd v Flightdeck Geelong Pty Ltd [2019] FCA 588 (Steward J); All Options Pty Ltd v Flightdeck Geelong Pty Ltd (No 2) [2019] FCA 1344 (Steward J).
[2] Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; 147 ASCR 227.
Otherwise, there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FCCA 236
Decision Date: 9 February 2021

CaseChat Overview and Summary

All Options Pty Ltd (the applicant) sought an order for possession of a property against Mr. Mathews (the respondent). The dispute concerned the applicant's entitlement to possession of the property following the respondent's alleged breach of a residential tenancy agreement. The matter was heard in the Magistrates Court of Western Australia.

The primary legal issue before the court was whether the applicant had validly terminated the residential tenancy agreement and, consequently, was entitled to an order for possession of the premises. This involved determining whether the notice to terminate served by the applicant complied with the requirements of the *Residential Tenancies Act 1987* (WA) and whether the grounds for termination relied upon by the applicant were established.

Judge A. Kelly found that the notice to terminate served by the applicant was defective as it did not specify the grounds for termination with sufficient particularity as required by the Act. Consequently, the notice was invalid, and the tenancy agreement had not been validly terminated. The court therefore held that the applicant was not entitled to an order for possession. The application for possession was dismissed.

Orders