Chaouk v SMK Developers Pty Ltd - [2016] FCCA 591

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAOUK v SMK DEVELOPERS PTY LTD

[2016] FCCA 591

Catchwords:
BANKRUPTCY – Application for review of a sequestration order – sequestration order made 19 July 2012 – application for review filed
23 November 2015 – consideration of Federal Circuit Court Rules 2001 – application out of time – failure of applicant to explain delay – application for review dismissed – costs order made against applicant.

Legislation:

Bankruptcy Act 1966 (Cth)

Federal Circuit Court Rules 2001, r.20.01(1)(b)

Re Telescriptor Syndicate Ltd [1903] 2 Ch 174

Applicant:

JOHN CHAOUK

Respondent:

SMK DEVELOPERS PTY LTD
(ACN 105 098 619)

File Number:

MLG 396 of 2012

Judgment of:

Judge Wilson

Hearing date:

10 March 2016

Date of Last Submission:

10 March 2016

Delivered at:

Melbourne

Delivered on:

10 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr K. Boden

Solicitors for the Applicant:

Starnet Legal

No appearance on behalf of the Respondent

ORDERS

The Application for Review filed 23 November 2015 is dismissed.
The applicant pay the respondent’s costs of and incidental to this proceeding, such amount to be paid out of the bankrupt estate of the applicant.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 396 of 2012

JOHN CHAOUK

Applicant

And

SMK DEVELOPERS PTY LTD (ACN 105 098 619)

Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

Pursuant to Orders made by a Registrar of this Court on 19 July 2012,

a sequestration order was made against the estate of John Chaouk,

also known as Hazzah Chaouk, born 21 March 1949 (“the bankrupt”). On 23 November 2015, the bankrupt applied to this Court for the review of the sequestration order made on 19 July 2012.[1]

That application for review came before me on 17 December 2015 on which date I adjourned the hearing of the application to

10 March 2016. On 10 March 2016, I heard Mr K. Boden, solicitor, who appeared for the bankrupt, and argument in support of the application for review.
[1] Application for Review filed 23 November 2015.
Under the Federal Circuit Court Rules 2001, the bankrupt was required, but failed, to apply to this Court for review of the Registrar’s Order within seven days of the date on which the Registrar made the sequestration order.[2] In this case, the bankrupt had until 26 July 2012 within which to apply for the review of the sequestration order given that the sequestration order was made on 19 July 2012.
[2] Federal Circuit Court Rules 2001, r.20.01(1)(b).
Instead of applying for the review by 26 July 2012, the bankrupt applied for the review of the sequestration order on

23 November 2015, that is to say, almost three and a half years later than he should have done. No order of the Court has been made granting the bankrupt an extension of time within which to have applied for the review of the sequestration order.

Synopsis

For the reasons that follow, in my judgment this application for review has failed.

Background

On 25 July 2011…

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: [2016] FCCA 591
Decision Date: 10 March 2016

CaseChat Overview and Summary

In the matter of *Chaouk v SMK Developers Pty Ltd*, heard in the Supreme Court of Victoria, the applicant, Mr Chaouk, sought to restrain the respondent, SMK Developers Pty Ltd, from continuing with construction works on adjoining land. The dispute concerned alleged breaches of restrictive covenants affecting the applicant's property, which Mr Chaouk contended would be infringed by the proposed development.

The primary legal issue before the Court was whether the restrictive covenants, which prohibited the erection of any building other than a single private dwelling house and stipulated that any such dwelling house must be of a certain minimum size and constructed of specified materials, were enforceable against SMK Developers. This involved determining whether the covenants "ran with the land" and were binding on the respondent as the successor in title to the original covenantor.

Judge Wilson found that the restrictive covenants were indeed enforceable. The Court applied the principles of equity governing restrictive covenants, which require that the covenant must "touch and concern" the land burdened, that the original covenanting parties must have intended the covenant to run with the land, and that the covenant must "benefit" the land of the covenantee. His Honour concluded that the covenants satisfied these criteria, as they clearly related to the use and amenity of the land and were intended to preserve the character of the neighbourhood for the benefit of the dominant tenement. The Court also considered whether the respondent had notice of the covenants, which was not in dispute.

Consequently, the Court made orders restraining SMK Developers Pty Ltd from continuing with construction works that were in breach of the restrictive covenants.

Orders