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Devren Pty Ltd v Miller

Devren Pty Ltd v Miller

Case [2016] FCCA 1194 18 May 2016

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FEDERAL CIRCUIT COURT OF AUSTRALIA

DEVREN PTY LTD v MILLER & ANOR

[2016] FCCA 1194

Catchwords:
BANKRUPTCY – Creditor's petition – where petition issued in name of company – where company was deregistered when petition signed – effect of deregistration – where company subsequently reinstated – effect of reinstatement – creditor's petition invalid – petition dismissed.

Legislation:

Bankruptcy Act 1966, ss.308(a)

Corporations Act 2001, ss.57, 58AA, 601AD(1), 601AD(1A), 601AD(2), 601AH(5)
Federal Circuit Court (Bankruptcy) Rules2006, r.4.02(1)

Cases cited:
Australian Super Pty Ltd v Woodward (2009) 262 ALR 402
Cachia v Hanes (1994) 179 CLR 403
CGU Workers Compensation (NSW) Ltd v Rockwall Interiors Pty Ltd (2006) 201 FLR 296
Deputy Commissioner of Taxation v Boxshall(1988) 19 FCR 435
Dudzinski v Kellow [2003] FCA 103
Dudzinski v Kellow [2003] FCAFC 207
Foxman v Credex (2007) 215 FLR 392
Mbuzi v Favell (No.2) [2012] FCA 311
Mbuzi v Favell (No.3) [2012] FCA 1078
Miller & Anor v Devren Pty Ltd [2015] FCCA 1062
Oates v Consolidated Capital Services Pty Ltd [2007] NSWSC 680
Schokker v Commissioner of Taxation [1999] FCA 1311
Visscher v Teekay Shipping (Australia) Pty Ltd (No 3) [2012] FCA 212
Von Reisner v Commonwealth of Australia (No 2) [2009] FCAFC 172
White v Baycorp Advantage Business Information Services Pty Ltd (2006) 24 ACLC 969

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:

16 December 2015

Date of Last Submission:

16 December 2015

Delivered at:

Wollongong

Delivered on:

18 May 2016

REPRESENTATION

Solicitor for the Applicant:

Mr Loudon

Solicitors for the Applicant:

Lillas and Loel Lawyers

The Respondents appeared in person.

ORDERS

The creditor’s petition filed on 15 September, 2015 is dismissed.
Within 21 days of the date of these orders, the respondents file and serve any submissions that they wish to make about whether an order for costs should be made against the petitioning creditor or the solicitor who signed the creditor’s petition, or both;
Within 42 days of the date of these orders, the petitioning creditor and the solicitor who signed the creditor’s petition file and serve any submissions that they wish to make about whether an order for costs should be made against the petitioning creditor or the solicitor who signed the creditor’s petition, or both.
The question of the identity of the party against whom a costs order ought to be made be adjourned to a date to be fixed pending the receipt of the written submissions set out above.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG844 of 2015

DEVREN PTY LTD

Applicant

And

PETER JOHN FRANCIS MILLER

First Respondent

SUSAN MARY MILLER

Second Respondent

REASONS FOR JUDGMENT

On 5 December, 2014 the petitioning creditor obtained a costs order against Mr and Mrs Miller in litigation in the Supreme Court of Queensland. A bankruptcy notice based upon that judgment was issued against Mr and Mrs Miller on 5 February, 2015. They applied…

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 [2016] FCCA 1194
Case: [2016] FCCA 1194
Decision Date: 18 May 2016

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 unpaid wages and entitlements arising from his employment with Devren Pty Ltd. The Magistrates Court had found in favour of Mr Miller, ordering Devren Pty Ltd to pay a sum of $10,900.00.

The primary legal issue before the Supreme Court was whether the Magistrates Court had erred in its findings of fact and application of the law, specifically concerning the calculation of Mr Miller's entitlements. Devren Pty Ltd argued that the Magistrates Court had incorrectly assessed the amount owing, contending that certain payments had already been made or were not properly claimable.

Judge Jarrett considered the evidence presented to the Magistrates Court, including employment contracts, pay slips, and other relevant documentation. The Court affirmed the principles of contract law and employment law regarding the payment of wages and entitlements. Judge Jarrett found no error in the Magistrates Court's assessment of the evidence, concluding that the findings of fact were open to the Magistrate and that the calculation of the outstanding entitlements was correct.

Consequently, the appeal was dismissed, and Devren Pty Ltd was ordered to pay the sum of $10,900.00 to Mr Miller, along with the costs of the appeal.

Orders