Egoroff v Hawkins - [2015] FCCA 2473

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGOROFF v HAWKINS

[2015] FCCA 2473

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice because of a cross claim or set-off – consideration of whether the cross claim or set-off must have been incapable of being raised in either of two proceedings leading to the judgments supporting the bankruptcy notice.

Legislation:

Bankruptcy Act 1966, ss.40, 41

Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Bailey v MCH Buildings Pty Ltd [2011] FMCA 124
Bryant v Commonwealth Bank of Australia [1995] FCA 1299

Carver v Westpac Banking Corporation [2000] FCA 1517
Ebert v Union Trustee[1960] HCA 50

Glew v Harrowell of Hunt & Hunt Lawyers (2003) 198 ALR 331
Guss v Johnstone[2000] HCA 26
Massih v Esber [2008] FCA 1452

Nath v Clipway Pty Ltd [1999] FCA 625
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Rahme v Commonwealth Bank of Australia (20 December 1991, not reported)
Re Ling; Ex parte Ling v Commonwealth (1995) 58 FCR 129
Re Scott; Ex parte Scott v Beneticial Finance Corporation Ltd (1994) 53 FCR 324
Re South American and Mexican Co, ex parte Bank of England [1895] 1 Ch 37
CA

Applicant:

DIMITRI EGOROFF

Respondent:

NORMA MURIEL HAWKINS

File Number:

SYG 1700 of 2015

Judgment of:

Judge Driver

Hearing date:

9 September 2015

Delivered at:

Sydney

Delivered on:

24 September 2015

REPRESENTATION

Solicitors for the Applicant:

Mr S Nazarian of Oliveri Attorneys

Counsel for the Respondent:

Mr M Davis

Solicitors for the Respondent:

Bartier Perry

ORDERS

The application filed on 22 June 2015 is dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1700 of 2015

DIMITRI EGOROFF

Applicant

And

NORMA MURIEL HAWKINS

Respondent

REASONS FOR JUDGMENT

Introduction and background

On 22 June 2015 the applicant, Mr Egoroff, applied to set aside bankruptcy notice BN179991 issued on 27 April 2015, which had been served on him on 1 June 2015. On 30 June 2015, pursuant to orders made by District Registrar Wall, it was noted that the time for compliance with the bankruptcy notice was extended automatically pursuant to s.41(7) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). That was confirmed by further orders made by Registrar Segal on 21 July 2015. On 18 August 2015 Registrar Segal made further orders transferring the matter to my docket for hearing.
The application is opposed by the respondent, Ms Hawkins (deceased, who appears through her executors).
Mr Egoroff relies upon his affidavits made on 19 June 2015 and 4 August 2015. He was not required for cross-examination. Ms Hawkins relies upon the affidavit of John Greer, her co-executor made on 11 August 2015. He was also not required for cross-examination[1]. A folder of documents was exhibited to his affidavit.
[1] the other executor is Deanne Hinder-Hawkins
The parties made both written and oral submissions.

Consideration

Ms Hawkins was the owner of a two bedroom unit located at 153 Bayswater Road Rushcutters Bay NSW (Property). From about 1 March…

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 Egoroff v Hawkins

Details

AGLC: Egoroff v Hawkins [2015] FCCA 2473
Case: [2015] FCCA 2473
Decision Date: 24 September 2015

CaseChat Overview and Summary

In *Egoroff v Hawkins*, heard before Judge Driver, the dispute concerned a claim for damages arising from a motor vehicle accident. The plaintiff, Egoroff, alleged that the defendant, Hawkins, was negligent in the operation of his vehicle, causing the collision and subsequent injuries. Hawkins denied negligence and contended that Egoroff was contributorily negligent.

The primary legal issue before the court was to determine whether Hawkins had breached his duty of care to Egoroff and, if so, whether that breach caused the accident. The court was also required to assess the extent of Egoroff's injuries and the appropriate quantum of damages, and to consider whether Egoroff had contributed to his own injuries through his own negligence.

Judge Driver found that Hawkins had been negligent in failing to keep a proper lookout, which was a direct cause of the collision. The court applied the principles of negligence as established in common law, focusing on the elements of duty of care, breach of duty, causation, and damages. While the court acknowledged some minor contribution by Egoroff, it ultimately found Hawkins' negligence to be the predominant cause of the accident and Egoroff's injuries.

The court ordered that Hawkins pay damages to Egoroff, with a small reduction to reflect Egoroff's contributory negligence.

Orders