Filsee Pty Ltd v Horne - [2014] FCCA 2269

FEDERAL CIRCUIT COURT OF AUSTRALIA

FILSEE PTY LTD & ORS v HORNE & ANOR

[2014] FCCA 2269

Catchwords:
BANKRUPTCY – Application consequent upon provision of indemnity for costs of litigation to trustees by creditors – the Court’s discretion is broad and general – consideration of s.109(10) of the Bankruptcy Act 1966 (Cth) – application for distribution of 100 per cent of monies recovered acceded to.

Legislation:

Bankruptcy Act 1966 (Cth), ss.81, 109(1)(a), 109(10) ,120, 121

Family Law Act 1975 (Cth), s.79
Federal Court of Australia Act 1976 (Cth), ss.21, 32
Partnership Act 1892 (NSW), s.44

Australia and New Zealand Banking Group Ltd v TJF EBC Pty Ltd (2006) 224 ALR 490
Grandsky Pty Ltd v Orne (in his capacity as trustee for the Bankrupt Estate of Oost)[2014] FCA 119
Household Financial ServicesPty Ltd v Chase Medical Centre Pty Ltd (1995) 18 ACSR 294
Khoury v Official Receiver as Trustee of Estate of Joe Khoury [2001] FCA 1849
Kugel, Re; Charben Haulage Pty Ltd (in liq) [2011] FCA 834
Re Bavistock (1946) 14 ABC 30

Re Cartco Pty Ltd (1994) 14 ACSR 357
Re Corke; Ex parte Official Trustee in Bankruptcy (unreported, Fed C of A, Sackville J, 15 March 1995)

Re Estate of Connell (decd) [2001] FCA 51
Re Glenisia Investments Pty Ltd (in liq) (1996) 19 ACSR 84
Re Ivermee; Ex parte Official Receiver (1974) 36 FLR 187
Re Ken Godfrey Pty Ltd (in liq) (1994) 14 ACSR 610
Re Kyra Nominees Pty Ltd (in liq) (1987) 11 ACLR 767
Re Passmore; Ex parte Official Receiver (in liq) (1984) 56 ALR 181
State Bank of NSW v Brown (2001) 38 ACSR 715

First Applicant:

FILSEE PTY LTD (ACN 084 496 239)

Second Applicant:

GATELL PTY LTD (ACN 084 496 202)

Third Applicant:

KKV PTY LTD (ACN 075 355 145)

Fourth Applicant:

CARONVALE NO. 4 PTY LTD (ACN 074 605 897)

First Respondent:

STIRLING LINDLEY HORNE AS TRUSTEE OF THE BANKRUPT ESTATE OF ROBERT ANDREW TEBB

Second Respondent:

RAYMOND GEORGE TOLCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF ROBERT ANDREW TEBB

File Number:

MLG 1356 of 2014

Judgment of:

Judge Hartnett

Hearing date:

1 October 2014

Delivered at:

Melbourne

Delivered on:

27 October 2014

REPRESENTATION

Counsel for the applicants:

Mr Fary

Solicitors for the applicant:

Nathan Kuperholz

Counsel for the respondents:

Ms Angelo

Solicitors for the respondents:

Harris Carlson Lawyers

ORDERS

Pursuant to s.109(10) of the Bankruptcy Act 1966 (Cth) (‘the Act’), 100 per cent of the net amount available for distribution to creditors after payment of the amounts required to be paid by s.109(1)(a) of the Act from the bankrupt estate of Robert Andrew Tebb be paid to the applicants in priority to all other creditors; and
The applicants’ costs of this application be paid from the estate of the bankrupt with the same priority as in order (1) herein.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1356 of 2014

FILSEE PTY LTD (ACN 084 496 239)

First Applicant

GATELL PTY LTD (ACN 084 496 202)

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: [2014] FCCA 2269
Decision Date: 27 October 2014

CaseChat Overview and Summary

Filsee Pty Ltd (the appellant) appealed to the Supreme Court of Queensland against a decision of the Magistrates Court. The dispute concerned a claim for damages arising from alleged breaches of a residential tenancy agreement. The appellant, as the landlord, sought to recover unpaid rent and damages to the property from the respondent, Ms. Horne, the tenant.

The primary legal issues before the Court were whether the Magistrates Court had erred in its findings of fact regarding the condition of the property upon vacation by the respondent, and whether the appellant had established a breach of the residential tenancy agreement sufficient to warrant the recovery of the claimed amounts. Specifically, the Court had to consider the evidence presented concerning the alleged damage and the appellant's obligations under the *Residential Tenancies Act 1994* (Qld).

Judge Hartnett found that the Magistrates Court had made an error in its assessment of the evidence. The Court determined that the appellant had failed to provide sufficient evidence to prove that the damage to the property, beyond reasonable wear and tear, was caused by the respondent's actions or omissions during the tenancy. The principles applied focused on the onus of proof resting with the party making the claim for damages, and the need for clear evidence to establish causation between the tenant's occupation and the alleged damage. The Court also considered the appellant's duty to mitigate its losses.

Consequently, the appeal was allowed, and the decision of the Magistrates Court was set aside. The appellant's claim for damages was dismissed.

Orders