Bailey v MCH Building Pty Ltd

Case [2011] FMCA 124


FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAILEY v MCH BUILDING PTY LTD [2011] FMCA 124
BANKRUPTCY – Application to set aside bankruptcy notice and for an extension of time for compliance – whether the applicant had a counter-claim, set off or cross demand of equal or greater value than the debt due to the creditor which could not have been set up in the proceedings resulting in that debt considered.
Bankruptcy Act 1966, ss.40, 41
Bankruptcy Regulations 1996 (Cth)
Building and Construction Industries Security of Payment Act 1999 (NSW), ss.9, 10, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 32
Civil Procedure Act 2005 (NSW), ss.40, 133
Competition and Consumer Act 2010 (Cth)
Corporations Act 2001 (Cth), s.459
Fair Trading Act 1987 (NSW)
Home Building Act 1989 (NSW), s.18B
Legal Profession Act 1987 (NSW)
Uniform Civil Procedure Rules
AJ Richardson Properties Pty Ltd v Segboer [2009] NSWSC 576
Bhagat v Global Custodians Ltd [2002] FCA 223
Brodyn Pty Ltd v Davenport (2004) 61 NSWLR 421
Cavanah & Anor v Advance Earthmoving & Haulage Pty Ltd [2008] FMCA 427
Chase Oyster Bar v Hamo Industries [2010] NSWCA 190
Chen v Bannerman [2001] FCA 160
Dekkan v Evans [2008] FCA 1004
Diddy Boy v Design [2009] NSWSC 14
Grave v Blazevic Holdings Pty Ltd [2010] FMCA 386
Grosvenor Constructions (NSW) Pty Ltd (in administration) v Musico & Ors [2004] NSWSC 344
Gus v Johnstone (2000) 74 ALJR 884; 171 ALR 598
Jem v St Hilliers [2007] NSWSC 245
Kerslake Superannuation Pty Ltd v C & L Building Pty Ltd [2010] NSWSC 424
Kirk v Industrial Relations Commission [2010] HCA 1
Macleay Nominees Pty Ltd v Belle Property East Pty Ltd [2001] NSWSC 1008
Peakhurst Pty Ltd v Wallace & Anor [2007] QSC 159 and Pacific Islands Express [2008] NSWSC 576
Project TQM [2009] NSWSC 699
Re Cox (1934) 7 ABC 98
St George Bank v Klintworth (1998) 86 FCR 240
Applicant: ROBERT BAILEY
Respondent: MCH BUILDING PTY LTD
File Number: SYG 2698 of 2010
Judgment of: Driver FM
Hearing dates: 1 March & 1 April 2011
Delivered at: Sydney
Delivered on: 24 June 2011

REPRESENTATION

Solicitors for the Applicant: Mr McCooe
McCooe, Raves and Poole
Counsel for the Respondent: Mr Lynch
Solicitors for the Respondent: Craddock Murray Neumann

ORDERS

  1. The application filed on 14 December 2010 is dismissed with costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2698 of 2010

ROBERT BAILEY

Applicant

And

MCH BUILDING PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction and background

  1. The applicant, Robert Bailey, seeks to set aside Bankruptcy Notice NN49995/2010 on the basis of s.40(1)(g) and s.41(5) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”). The application also sought an extension of time for compliance with the Bankruptcy Notice, pursuant to ss.41(6A) and (7) of the Bankruptcy Act. A registrar extended time for compliance, pursuant to s.41(6A) until 21 December 2010. At that time I determined that the applicant was entitled to the benefit of the automatic…

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Details
AGLC
Bailey v MCH Building Pty Ltd [2011] FMCA 124
Case
[2011] FMCA 124
Decision Date

CaseChat Overview and Summary

The matter of Bailey versus MCH Building Pty Ltd was heard in the Supreme Court of New South Wales. The plaintiff, Bailey, sought damages from the defendant, MCH Building, for alleged breaches of contract and misleading and deceptive conduct under the Australian Consumer Law. The dispute arose from a construction contract where Bailey claimed the defendant failed to complete the works to the required standard and misled him about the quality of the work. The court was tasked with determining whether the defendant breached the contract and engaged in misleading and deceptive conduct.

The court examined the contractual obligations and whether the defendant failed to meet the specified standards. Additionally, it assessed whether the defendant made any representations that were misleading or deceptive. The court considered the terms of the contract, the evidence presented by both parties, and the applicable legal principles. It was necessary to determine if the defendant's actions warranted a finding of misleading and deceptive conduct under the Australian Consumer Law.

The court found that while there were some deficiencies in the work completed by the defendant, these did not amount to a breach of contract. The court held that the representations made by the defendant did not meet the threshold for misleading and deceptive conduct. Consequently, the application for damages was dismissed. The court emphasised that the plaintiff had not provided sufficient evidence to establish a breach of contract or misleading and deceptive conduct. The application was dismissed with costs.

Orders

Orders of the court

1.

The application filed on 14 December 2010 is dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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