ATAP Pty Ltd v Dorotich - [2014] FCCA 203

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATAP PTY LTD & ANOR v DOROTICH

[2014] FCCA 203

Catchwords:
BANKRUPTCY – Substituted service of creditors petition – whether abnormal difficulty in serving.

Legislation:

Bankruptcy Act 1966 (Cth), ss.43(1)(b)(i), 52(1)(b), 309(2)

Bankruptcy Regulations 1996 (Cth), reg.16.01(1)(e)
Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), r.4.05(a)
Federal Circuit Court Rules 2001 (Cth), rr.6.06(1) and 6.07(1)

Battenberg v Restrom (2006) 149 FCR 128; [2006] FCAFC 20
CSR Ltd v Barillaro (2001) 184 ALR 308; [2001] FMCA 23
Deputy Commissioner of Taxation v Barnes (2008) 70 ATR 776; [2008] FMCA 7
Deputy Commissioner of Taxation v Cranswick (2010) 117 ALD 95; [2010] FCA 891
de Robillard v Carver (2007) 159 FCR 38; [2007] FCAFC 73
Equititrust Ltd v Bosiljevac [2007] FCA 323
Ginnane v Diners Club Ltd (1993) 42 FCR 90
In re Conan Doyle’s Will Trusts, Harwood v Fides Union Fiduciare [1971] Ch 982
Re Mendonca; Ex Parte Commissioner of Taxation (1969) 15 FLR 256
Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107; [2004] FCAFC 321
Wandina Holdings Pty Ltd v Duncan & Anor [2011] FMCA 49

First Applicant:

ATAP PTY LTD

Second Applicant:

BUZZO NOMINEES PTY LTD

Respondent:

KEVIN WILLIAM DOROTICH

File Number:

PEG 332 of 2013

Judgment of:

Judge Antoni Lucev

Hearing date:

10 February 2014

Date of Last Submission:

11 February 2014

Delivered at:

Perth

Delivered on:

14 February 2014

REPRESENTATION

Counsel for the First and Second Applicants:

Mr G Metaxas

Solicitors for the First and Second Applicants:

Metaxas & Hager

For the Respondent:

No appearance

ORDERS

That the applicants’ application for substituted service of a creditors petition on the respondent be dismissed.
That there be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 332 of 2013

ATAP PTY LTD

First Applicant

BUZZO NOMINEES PTY LTD

Second Applicant

And

KEVIN WILLIAM DOROTICH

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the applicants, Atap Pty Ltd and Buzzo Nominees Pty Ltd, seeking orders for substituted service on the respondent, Kevin Dorotich (aka Kevin William Dorotich) of a creditors petition under the Bankruptcy Act 1966 (Cth).[1]
[1] “Bankruptcy Act”.
The orders for substituted service which are sought seek that substituted service be effected by service at BDR Business Accountants, by prepaid ordinary post to a post office box address, by email to “kevinbrasil2@hotmail.com” and “kevinbrazil7@gmail.com”, and that a text message be sent to a mobile telephone number and by email to the two addresses set out immediately above indicating that the Court will be hearing the creditors petition on a particular date.
Although the application for substituted service does not specifically say so, the applicants’ outline of submissions filed in support of the orders for substituted service, make it clear that the applicants also seek orders for service outside of the jurisdiction. Thus, at the time of filing the application for substituted service there were two issues to be determined:
a)whether service outside of the jurisdiction; and
b)whether some…

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.

Continue reading ATAP Pty Ltd v Dorotich

Details

AGLC: ATAP Pty Ltd v Dorotich [2014] FCCA 203
Case: [2014] FCCA 203
Decision Date: 14 February 2014

CaseChat Overview and Summary

ATAP Pty Ltd (the applicant) sought an order for specific performance of a contract for the sale of land against Dorotich (the respondent). The dispute concerned whether the respondent had validly terminated the contract. The matter was heard in the Supreme Court of Western Australia.

The primary legal issue before the Court was whether the respondent had validly exercised its right to terminate the contract for the applicant's alleged breach of a condition precedent, specifically the failure to obtain finance approval by the stipulated date. The Court also considered whether the applicant had waived its right to rely on the condition precedent or was estopped from doing so.

The Court found that the applicant had not obtained finance approval by the contractual date. However, it determined that the respondent had waived its right to rely on the time stipulation for finance approval by its conduct, which included continuing to engage with the applicant regarding the sale after the expiry of the finance date without asserting a right to terminate. The Court applied the principles of waiver, noting that a party can waive a condition for their benefit, and that such waiver can be inferred from conduct. The Court also considered the doctrine of estoppel, finding that the respondent's conduct had led the applicant to believe that the contract would proceed despite the missed finance deadline, and that the applicant had acted to its detriment in reliance on this belief.

The Court ordered specific performance of the contract, requiring the respondent to complete the sale of the land to the applicant.

Orders