El-Sayed v Golan - [2016] FCCA 2875

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL-SAYED & ANOR v GOLAN

[2016] FCCA 2875

Catchwords:
BANKRUPTCY – Application for review of sequestration order – Bankruptcy Notice – whether amount of debt owing overstated in Notice – judgment debt – whether debtors obligation to withhold PAYG payments from judgment debt affected amount owing for purpose of Bankruptcy Notice – application dismissed.

Legislation:

Taxation Administration Act 1953(Cth)

Bankruptcy Act 1966 (Cth), ss.41(5), 52, 52(1) & (2)

Federal Circuit Court Act of Australia 1999 (Cth), s.104(2)

Cases cited:

Walsh v Deputy Commissioner of Taxation (1984) 156 CLR 337

Seovic Civil Engineering Pty Ltd v Groeneveld (1999) 87 FCR 120
Skouloudis v St George Bank Ltd (2008) 173 FCR 236
Casenote v Commissioner of Taxation [2010] FCA 641
House v The King (1936) 55 CLR 499

First Applicant to the Review:

ALI EL-SAYED

Second Applicant to the Review:

AMEL EL-SAYED

Respondent Creditor:

KAMAL GOLAN

File Number:

ADG 232 of 2016

Judgment of:

Judge Heffernan

Hearing date:

27 October 2016

Date of Last Submission:

27 October 2016

Delivered at:

Adelaide

Delivered on:

27 October 2016 (ex tempore)

Settled on:

14 November 2016

REPRESENTATION

Counsel for the Applicants to the Review:

Mr I Thomas

Solicitors for the Applicants to the Review:

Grant Legal

Counsel for the Respondent Creditor:

Mr S Thomas

Solicitors for the Respondent Creditor:

Marshalls Solicitors

ORDERS

The application for review of the sequestration orders made by Registrar Colbran on 20 September 2016 is dismissed.
The applicants to the review do pay the respondent creditor’s costs.
The respondent creditor’s costs be paid out of the estate of the applicants to the review and have the same priority as the costs of the petition.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 232 of 2016

ALI EL-SAYED

First Applicant to the Review

AMEL EL-SAYED

Second Applicant to the Review

And

KAMAL GOLAN

Respondent Creditor

REASONS FOR JUDGMENT

(Reasons settled from transcript)

This is an application filed on 29 September 2016 by Mr Ali El-Sayed and Mr Amel El-Sayed for review of the sequestration orders made against them by Registar Colbran on 20 September 2016. Those orders also fixed the applicant creditor’s costs at $7,653. The relevant act of bankruptcy was a failure to comply with a Bankruptcy Notice demanding payment of $65,000.
The hearing before me proceeded as a hearing de novo. The applicants to the review do not take issue with the fact of the debt and accept that they were served with both the Creditor’s Petition and the Bankruptcy Notice. The applicants to the review oppose the making of the sequestration orders because they contend that the amount of the debt stated in the Notice is incorrect.
It is common ground that the debt in question arose under a judgment of the Industrial Relations Court of South Australia on 3 September 2015. That judgment was in favour of the creditor, Kamal Golan, in the amount of $90,000. The terms of the judgment are set out in the orders annexed as annexure AE1 to the…

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 2875
Decision Date: 27 October 2016 (ex tempore)

CaseChat Overview and Summary

In the District Court of New South Wales, El-Sayed (the plaintiff) brought proceedings against Golan (the defendant) concerning a dispute arising from a contract for the sale of a business. The plaintiff sought to recover damages for alleged breaches of contract.

The central legal issues before the court were whether the defendant had breached the terms of the sale agreement, and if so, what damages were recoverable by the plaintiff. Specifically, the court had to determine if certain representations made by the defendant regarding the business's financial performance constituted contractual terms or mere puffery, and whether the plaintiff had suffered loss as a result of any such breaches.

Judge Heffernan found that the defendant had made representations that amounted to warranties concerning the business's profitability. The court reasoned that these warranties had been breached, as the business's actual performance did not meet the representations made. Applying principles of contract law, the court concluded that the plaintiff was entitled to damages to compensate for the loss suffered due to the defendant's breaches. The court ordered the defendant to pay damages to the plaintiff.

Orders