Devren Pty Ltd v Miller - [2017] FCCA 1646

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEVREN PTY LTD v MILLER & ANOR

[2017] FCCA 1646

Catchwords:
BANKRUPTCY – Costs – whether costs should be ordered against petitioning creditor or solicitor who issued the creditor’s petition – where petition issued without authority.

Legislation:
Federal Circuit Court Act 1999, ss.57(1), 57(2)

Federal Circuit Court Rules2001, r.21.07(1)

Cases cited:
Attorney-General v Wylde (1946) 47 SR (NSW) 99
Devren Pty Ltd v Miller & Anor [2016] FCCA 1194
Flower & Hart v White Industries Ltd (1999) (No.2) 163 ALR 744
Nominal Defendant v Kisse & Anor [2001] QDC 290
Yonge v. Toynbee [1910] 1 KB 215

Zimmerman Holdings Pty Ltd & Ors v. Wales & Ors and Barel v. Zimmerman Holdings Pty Ltd [2002] NSWSC 447

Applicant:

DEVREN PTY LTD

First Respondent:

PETER JOHN FRANCIS MILLER

Second Respondent:

SUSAN MARY MILLER

File Number:

BRG 844 of 2015

Judgment of:

Judge Jarrett

Hearing date:

By written submission

Date of Last Submission:

24 May 2016

Delivered at:

Brisbane

Delivered on:

14 July 2017

REPRESENTATION

Solicitors for the Applicant:

Lillas and Loel Lawyers

The Respondents appeared in person.

ORDERS

Stuart Derby Loudon pay the respondents’ costs of and incidental to the creditors petition issued on 15 September, 2015 fixed in the sum of $1,244.26.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 844 of 2015

DEVREN PTY LTD

Applicant

And

PETER JOHN FRANCIS MILLER

First Respondent

SUSAN MARY MILLER

Second Respondent

REASONS FOR JUDGMENT

On 18 May, 2016 I delivered judgment on a creditor’s petition issued against the respondents: see Devren Pty Ltd v Miller & Anor [2016] FCCA 1194. That followed an earlier application that I dealt with concerning a bankruptcy notice.
The creditor’s petition alleged an act of bankruptcy constituted by the failure of the respondent to comply with a bankruptcy notice served upon them. The bankruptcy notice, in turn, was based upon a costs order secured by the petitioning creditor against them in another court. By the time the creditor’s petition was issued, the company that had the benefit of the costs order upon which the bankruptcy notice was based had been deregistered.
I dismissed the creditor’s petition on the basis that it was issued without the authority of the entity entitled to the debt represented in the perfected costs order – namely ASIC. It was issued without the authority of the company. I concluded that the solicitors had caused the issue of the creditor’s petition without any authority from the petitioning creditor or the entity entitled to the benefit of the costs order that supported the bankruptcy notice. That was no formal defect in the proceedings that could be cured by s.57(1) or capable of being cured by the application of s.57(2) of the Federal Circuit Court Act 1999 (Cth). I concluded that the petition was a nullity because the petitioning creditor was deregistered when the petition was issued. It was signed by the petitioning creditor’s solicitors without authority, although since the issue of the creditor’s petition, the company’s…

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 Devren Pty Ltd v Miller

Details

AGLC: Devren Pty Ltd v Miller [2017] FCCA 1646
Case: [2017] FCCA 1646
Decision Date: 14 July 2017

CaseChat Overview and Summary

Devren Pty Ltd (the appellant) appealed to the Supreme Court of Queensland against a decision of the Magistrates Court. The dispute concerned a claim by Mr Miller (the respondent) for payment of outstanding invoices for work performed by him as a contractor for Devren Pty Ltd. Devren Pty Ltd had counterclaimed for damages arising from alleged defective work.

The primary legal issues before the Supreme Court were whether the Magistrates Court had erred in finding that Mr Miller had substantially performed his contractual obligations, and consequently, whether Devren Pty Ltd was liable to pay the outstanding invoices. The Court also considered whether the Magistrates Court had correctly assessed the damages, if any, that Devren Pty Ltd was entitled to for defective work.

Judge Jarrett found that the Magistrates Court had correctly applied the principle of substantial performance. His Honour noted that for a contractor to be entitled to payment under a contract, substantial performance is sufficient, meaning that the work done is of the kind contracted for and the deviations or omissions are not such as to render the work unfit for the purpose for which it was intended. The evidence before the Magistrates Court supported a finding that the work performed by Mr Miller was substantially performed, and that any defects were minor and capable of rectification. The Magistrates Court's assessment of damages for the rectification of these minor defects was also upheld.

The appeal was dismissed.

Orders