FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ELLIOTT v WATER WHEEL HOLDINGS LTD AND ELLIOTT v WATER WHEEL MILLS PTY LTD | [2004] FMCA 75 |
| BANKRUPTCY – Application to set aside bankruptcy notices – Deeds of Company Arrangement – whether Administrator has power to apply for issue of bankruptcy notices in relation to future property – bankruptcy notices – validity – word italicised rather than underlined – whether inclusion of attachment of page 6 of notice relating to interest where no interest claimed a defect or irregularity – whether notices invalid – purposive approach – substantial compliance – application of s.306 of Bankruptcy Act – whether s.25C of the Acts Interpretation Act applies. |
Bankruptcy Act 1966, ss.40(1), 40(1)(g), 40(3), 41, 41(2), 306(1), 444A
Corporations Act 2001, ss.9.110, 444A, 558J, 588L,1401(3)
Bankruptcy Regulations, Reg 4.02
Supreme Court (General Civil Procedure) Rules 1996 (Vic), Rule 66.12(1)
Property Law Act 1958, s.134
Acts Interpretation Act 1901, s.25C
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Hospital Products Ltd v USSC (1984) 156 CLR 41
Poulton v Commonwealth (1953) 89 CLR 540
Gould v Skinner (1983) 1 QDR 377
Farrugia v Farrugia [2000] 99 FCR 16
Australian Steel Co (Operations) Pty Ltd v Lewis [2000] 109 FCR 33
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71
Marshall v General Motors Acceptance Corporation Australia (2003) 199 ALR 109
| Applicant: | JOHN DORMAN ELLIOTT |
| Respondent: | WATER WHEEL HOLDINGS LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) (ACN 004 450 033) |
| File No: | MZ 57 of 2004 |
| Applicant: | JOHN DORMAN ELLIOTT |
| Respondent: | WATER WHEEL MILLS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) (ACN 004 032 473) |
| File No: | MZ 59 of 2004 |
| Delivered on: | 19 February 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 13 February 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr G Bigmore QC with Mr Heath |
| Solicitors for the Applicant: | Tress Cocks & Maddox |
| Counsel for the Respondents: | Mr R Brett QC |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The applications filed 23 January 2004 be dismissed.
The Applicant shall pay the Respondents’ costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 57 of 2004
| JOHN DORMAN ELLIOTT |
Applicant
and
| WATER WHEEL HOLDINGS LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) (ACN 004 450 033) |
Respondent
MZ 59 of 2004
| JOHN DORMAN ELLIOTT |
Applicant
and
| WATER WHEEL MILLS PTY LTD (SUBJECT TO A DEED OF COMPANY ARRANGEMENT) (ACN 004 032 473) |
Respondent
REASONS FOR JUDGMENT
Introduction
There are two applications before the court by John Dorman Elliott (the applicant). Both applications filed on 23 January 2004 seek orders setting aside bankruptcy notices. In the first application (MZ 57 of 2004) the Applicant seeks to set aside bankruptcy notice VN1894/03, whilst in the second application, MZ 59 of 2004, he seeks to set aside bankruptcy notice VN1895/03.
The grounds upon which each application is based are identical.…
- AGLC
- Elliott v Water Wheel Holdings Ltd And Elliott v Water Wheel Mills Pty Ltd [2004] FMCA 75
- Case
- [2004] FMCA 75
- Decision Date
CaseChat Overview and Summary
The primary legal issues revolved around the interpretation of contractual terms, the applicability of Australian Consumer Law, and the jurisdictional scope of the Federal Court. Specifically, the court had to ascertain whether the claims made by Elliott against the respondents were primarily contractual in nature or if they fell under the Australian Consumer Law. Additionally, the court had to consider whether the Federal Court had the requisite jurisdiction to hear the matter, given the complex interplay between contract law and consumer protection statutes.
The court dismissed the applications filed by Elliott on 23 January 2004. In its reasoning, the court found that the claims were predominantly contractual and not adequately supported by the provisions of the Australian Consumer Law. Furthermore, the court determined that the Federal Court did not possess the appropriate jurisdiction to entertain the matter, as it primarily involved contractual disputes that were more appropriately resolved in a state or territory court. Consequently, the applications were dismissed, and the applicant was ordered to pay the respondents’ costs in accordance with Order 62 of the Federal Court Rules.
Orders
Orders of the court
1.
The applications filed 23 January 2004 be dismissed.
2.
The Applicant shall pay the Respondents’ costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
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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