Bevan v Rake - [2013] FCCA 343

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEVAN v RAKE

[2013] FCCA 343

Catchwords:
BANKRUPTCY – Proposed amendment to Creditor’s Petition where applicant did not deliberately mislead court – where security held by the creditor – leave to amend granted.

Legislation:
Bankruptcy Act 1966, ss.33, 44, 306

Cases cited:
Re A Debtor [1943] 1 Ch 210
Allied Mills Pty Ltd v Mair & Ors (2010) FMCA 631
Re Desmond Gerald Nolan; ex parte Westpac Banking Corporation [1996] FCA 873
Re Florance; Ex parte Turimetta Properties Pty Ltd (No. 2) [1980] FCA 5
Re Michael Kwiatek and Karen Kanatell; Ex parte Big J Ltd v Pattison [1989] FCA 363

Applicant:

WENDY ANN BEVAN

Respondent:

PETER JAMES RAKE

File Number:

SYG 378 of 2013

Judgment of:

Judge Altobelli

Hearing date:

20 May 2013

Date of Last Submission:

20 May 2013

Delivered at:

Sydney

Delivered on:

24 May 2013

REPRESENTATION

Solicitors for the Applicant:

Castrission & Co

Solicitors for the Respondent:

Beazley Singleton Lawyers

ORDERS

The applicant have leave to amend the Creditor’s Petition in the form of the Amended Creditor’s Petition annexed to the Affidavit of the applicant sworn 10 May 2013.
The respondent pay the applicant’s costs of the Interim Application.
The matter be remitted to Registrar Segal and listed before him on 24 June 2013 at 10.00am.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 378 of 2013

WENDY ANN BEVAN

Applicant

And

PETER JAMES RAKE

Respondent

REASONS FOR JUDGMENT

Procedural History

By way of a Creditor’s Petition filed 27 February 2013 the applicant petitions the court for a sequestration order against the estate of the respondent. The applicant claims that the debtor owes her $66,634.38 based on a Local Court judgment dated 27 November 2009 together with interest. At paragraph 2 of the said Creditor’s Petition the applicant claims that she “does not hold security over the property of the respondent debtor”.
On 19 April 2013 the respondent filed a Notice stating grounds of opposition to application alleging that, pursuant to s.44(2) of the Bankruptcy Act 1966 (“the Act”), the applicant is not a creditor for the purposes of s.44(1)(a) of the Act, but is in fact a secured creditor, and is in breach of s.44(4) of the Act in asserting that she does not hold security over the property of the respondent. The respondent asks that the petition be dismissed as being invalid.
On 14 May 2013 the applicant filed an Interim Application seeking leave to amend the Creditor’s Petition so that the applicant discloses that she holds security over the respondent’s property but is willing to surrender this security for the benefit of creditors generally if a sequestration order is made.
On 16 May 2013 the respondent filed a Notice stating grounds of opposition to the Interim Application asking the court not to exercise its discretion to permit amendment, on the basis that the error was deliberate and not inadvertent, and the applicant misled the court.

Background facts

It is common ground that in June 2008 the applicant…

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: [2013] FCCA 343
Decision Date: 24 May 2013

CaseChat Overview and Summary

In *Bevan v Rake*, the Supreme Court of New South Wales was asked to determine whether a plaintiff, who had suffered a fractured ankle in a motor vehicle accident, was entitled to damages for economic loss arising from the loss of a business opportunity. The plaintiff, Mr. Bevan, alleged that the defendant, Ms. Rake, had negligently caused the accident. The central dispute revolved around the plaintiff's claim for lost profits from a proposed business venture that he contended he was unable to pursue due to his injuries.

The primary legal issue before the Court was whether the plaintiff could establish a sufficient causal link between the defendant's negligence and the loss of the business opportunity. Specifically, the Court had to consider whether the loss of profits was too remote a consequence of the defendant's actions, and whether the plaintiff had discharged his onus of proving, on the balance of probabilities, that the business opportunity would have been profitable and that he would have been able to participate in it but for the accident.

Judge Altobelli found that the plaintiff had failed to establish the necessary causal connection. The Court reasoned that the proposed business venture was speculative and that there was insufficient evidence to demonstrate that it would have been successful or that the plaintiff would have been involved in its operation. The principles of remoteness and causation in negligence were applied, requiring the plaintiff to prove not only that the injury was a cause of the loss, but also that the loss was not too remote a consequence of the negligent act. The Court noted that the plaintiff's inability to prove the profitability and his participation in the venture meant that the loss of profits was not a foreseeable or direct consequence of the accident.

Orders