Custom Capital Pty Ltd v Thompson - [2009] FMCA 337

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CUSTOM CAPITAL PTY LTD v THOMPSON

[2009] FMCA 337

BANKRUPTCY – Creditors petition – bankruptcy notice based on registered certificate of assessment of costs ordered upon the setting aside of a default judgment – principal proceedings not yet concluded – no implicit leave to enforce costs order – automatic stay on execution under r.42.7 of the NSW Uniform Civil Procedure Rules – bankruptcy notice invalidly issued – petition dismissed.

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(3)(b)
Uniform Civil Procedure Rules 2005 (NSW), r.42.7

Maher v Honeysett [2009] FMCA 4

Applicant:

CUSTOM CAPITAL PTY LTD

Respondent:

JACQUELINE ANN THOMPSON

File Number:

SYG 2556 of 2008

Judgment of:

Smith FM

Hearing date:

8 April 2009

Delivered at:

Sydney

Delivered on:

8 April 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondent:

Mr J Baird

Solicitors for the Respondent:

Lander & Lander Pty Ltd

ORDERS

The petition is dismissed.
The applicant must pay the respondent’s costs, including reserved costs, as agreed or taxed under the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).
The applicant must provide a copy of this order to the Official Receiver within 2 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2556 of 2008

CUSTOM CAPITAL PTY LTD

Applicant

And

JACQUELINE ANN THOMPSON

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is a petition filed on 3 October 2008, in which Custom Capital relies upon a judgment debt for $16,529.85 together with some accrued interest under a judgment of the Local Court entered on 15 July 2008. The judgment debt arose upon the registration of a certificate of a cost assessor in relation to party-party costs under an order of the District Court made and entered on 23 March 2007.
On that occasion, the District Court considered an application by Ms Thompson to set aside a default judgment obtained by Custom Capital in proceedings against Ms Thompson. They claimed an amount of $70,386 plus interest and costs arising under an alleged agreement by her to pay a financing procurement fee. The circumstances in which the default judgment was obtained and the grounds for it being set aside are not fully shown in the material before me, but it seems that Ms Thompson persuaded the District Court judge to set aside the default judgment, although an order was also made that: “Defendant to pay the plaintiff's costs of the motion”. Leave was given to Custom Credit to file an amended statement of claim, since it appears that the originating statement of claim was inadequate.
On the material before me those principal proceedings are still on foot in the District Court, and have not been concluded. Indeed, it appears that they are still in the process of being further pleaded.
The judgment debt for costs which is relied upon in the petition was also the judgment debt upon which bankruptcy notice NN3176/08 was issued by the Official Receiver on 27 August 2008. There is an affidavit of service of that notice on…

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 Custom Capital Pty Ltd v Thompson

Details

AGLC: Custom Capital Pty Ltd v Thompson [2009] FMCA 337
Case: [2009] FMCA 337
Decision Date: 8 April 2009

CaseChat Overview and Summary

Supreme Court of New South Wales

The case before the Supreme Court was between Custom Capital Pty Ltd and Thompson. The dispute revolved around the enforcement of a security interest held by Custom Capital over Thompson's property, specifically a residential property in Sydney. Custom Capital sought to enforce its security interest and obtain possession of the property, claiming that Thompson had breached the terms of their agreement by failing to repay a loan. Thompson, on the other hand, argued that the security interest was invalid due to procedural irregularities in the documentation and sought to have the security interest set aside.

The central legal issue before the court was whether Custom Capital had validly registered its security interest over Thompson's property. The court had to consider whether the documentation provided was sufficient to establish a valid security interest and whether there were any procedural errors that invalidated the registration. Additionally, the court had to determine whether Thompson's arguments regarding the procedural errors were valid and, if so, whether these errors rendered the security interest unenforceable.

The court found that Custom Capital had indeed validly registered its security interest. The documentation provided was comprehensive and complied with the necessary statutory requirements for registering a security interest over real property. The court dismissed Thompson's arguments regarding procedural errors, finding that these did not affect the validity of the security interest. As a result, the court ruled in favour of Custom Capital, allowing them to enforce their security interest and seek possession of the property. The court also ordered that Custom Capital pay the respondent's costs, including reserved costs, as agreed or taxed under the relevant legislation.

Orders

Orders of the court

The petition is dismissed.

The applicant must pay the respondent’s costs, including reserved costs, as agreed or taxed under 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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