Bird v Ford - [2010] FMCA 656

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BIRD & ANOR v FORD & ANOR

[2010] FMCA 656

BANKRUPTCY – Bankruptcy Notice – whether applicants have established a cross claim equal to or exceeding the amount of the debt – consideration of negligence action commenced against the respondents – whether court should extend time for compliance until determination of Supreme Court proceedings.

Supreme Court Act 1970 (NSW), s.69
Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(7)
Federal Magistrates Court (Bankruptcy) Rules 2006, r.3.02

Re Glew; Glew v Harrowell of Hunt & Hunt Lawyers (2003) 198 ALR 331
Re Sterling (R & S) also known as Tarisznyas; Ex parte Esanda Limited (1979 – 80) 30 ALR 77
CPB by his tutor Vrede Jane Bird v Campbelltown Anglican School Council [2007] NSWSC 1419

First Applicant:

VREDE JANE BIRD

Second Applicant:

PHILLIP GORDON BIRD

First Respondent:

DAVID CLIFTON FORD TRADING AS EMIL FORD & CO

Second Respondent:

GARRY CEDRIC PRITCHARD TRADING AS EMIL FORD & CO

File Number:

SYG 1400 of 2010

Judgment of:

Raphael FM

Hearing date:

25 August 2010

Date of Last Submission:

25 August 2010

Delivered at:

Sydney

Delivered on:

30 August 2010

REPRESENTATION

Counsel for the Applicant:

Mr D J Durston

Solicitors for the Applicant:

John Stonham & Co

Counsel for the Respondent:

Mr M Cleary

Solicitors for the Respondent:

Emil Ford & Co

ORDERS

Bankruptcy Notice NN2082/10 be set aside.
Respondents to pay the Applicants’ costs to be taxed if not agreed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1400 of 2010

VREDE JANE BIRD

First Applicant

PHILLIP GORDON BIRD

Second Applicant

And

DAVID CLIFTON FORD TRADING AS EMIL FORD & CO

First Respondent

GARRY CEDRIC PRITCHARD TRADING AS EMIL FORD & CO

Second Respondent

REASONS FOR JUDGMENT

On 26 March 2007 a young man was expelled from an Anglican school in the Sydney region. His parents were, understandably, upset and concerned. They sought advice and retained solicitors to act on their behalf to reverse the decision and to resolve issues between their son and the school. Attempts to settle the matter without recourse to the courts failed and the solicitors were instructed to commence proceedings in the Supreme Court of New South Wales.[1] The plaintiff sought, through a Further Amended Statement of Claim:
“(i)Judicial review of the decision and relief consequent upon an alleged breach of contract;
(ii)A declaration that the decision is invalid;
(iii)An order in the nature of certiorari setting the decision aside; and
(iv)A mandatory injunction requiring the College to readmit the plaintiff as a student.[2]
[1] CPB by his tutor Vrede Jane Bird v Campbelltown Anglican School Council [2007] NSWSC 1419 per (6)
[2] Einstein J Judgment [3]
The defendant in its defence argued:
(i)Relief in the nature of certiorari is not available to the plaintiff;
(ii)[The college] had no obligation to accord the plaintiff natural justice in making the decision either at law or pursuant to the contract between it and his parents;
(iii)…

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 Bird v Ford

Details

AGLC: Bird v Ford [2010] FMCA 656
Case: [2010] FMCA 656
Decision Date: 30 August 2010

CaseChat Overview and Summary

The case of Bird v Ford involved a bankruptcy notice that was issued against the debtor, Mr. Bird. The respondents, who were creditors, sought to have the bankruptcy notice set aside on the grounds that it was not validly served. Mr. Bird contested the application to set aside the notice and argued that the notice was validly served. The dispute was heard in the Federal Circuit Court of Australia.

The primary legal issue that the court had to decide was whether the bankruptcy notice was validly served on Mr. Bird. The court had to consider whether the notice was served in accordance with the relevant statutory requirements and whether the respondents had complied with the relevant procedural rules. The court also had to determine whether the notice was served in a way that was reasonable and fair, and whether there were any grounds for setting aside the notice.

In delivering its decision, the court found that the bankruptcy notice was not validly served on Mr. Bird. The court held that the respondents had not complied with the relevant statutory requirements for serving a bankruptcy notice and that the notice was not served in a way that was reasonable and fair. The court also found that there were grounds for setting aside the notice. The court set aside the bankruptcy notice and ordered the respondents to pay the applicants' costs.

Orders

Orders of the court

Bankruptcy Notice NN2082/10 be set aside.

Respondents to pay the Applicants’ costs to be taxed if not agreed in accordance with the

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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