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Fode v Horne

Fode v Horne

Case [2015] FCCA 70 12 January 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FODE v HORNE & ANOR

[2015] FCCA 70

Catchwords:
BANKRUPTCY – Proof of debt – review under s.104 – discretion – trustees duties – whether the debt was incurred by the applicant personally or as the director or agent of a company.

Legislation:

Bankruptcy Act 1966

Daevys v Official Trustee in Bankruptcy [2011] FCA 398
Young, In the Matter of Macryannis [2011] FCA 1272

Applicant:

MARKO FODE

First Respondent:

STIRLING LINDLEY HORNE (IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF MARKO FODE)

Second Respondent:

SHERRIFF'S OFFICE VICTORIA

File Number:

MLG 2233 of 2014

Judgment of:

Judge Street

Hearing date:

12 January 2015

Date of Last Submission:

12 January 2015

Delivered at:

Melbourne

Delivered on:

12 January 2015

REPRESENTATION

Counsel for the Applicant:

Dr Bender

Solicitors for the Applicant:

Vincent J Ryan

Counsel for the Respondent:

Mr Evans

Solicitors for the Respondent:

White Cleland

ORDERS

The Second Further Amended Application filed 12 January 2015 be dismissed.
The Interim Injunction made on 22 December 2014 be dissolved.
The Applicant pay the Respondent’s costs (including reserved costs) on an ordinary basis.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 2233 of 2014

MARKO FODE

Applicant

And

STIRLING LINDLEY HORNE (IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF MARCO FODE)

First Respondent

SHERRIFF'S OFFICE VICTORIA

Second Respondent

REASONS FOR JUDGMENT

This is an application brought by the Applicant who is a bankrupt pursuant to the Court’s jurisdiction vested by s.27 of the Bankruptcy Act 1966 in the Federal Circuit Court of Australia. The Applicant was made bankrupt on 12 May 2011 and the First Respondent was appointed trustee on 23 October 2011 in respect of the estate of the bankrupt. On 19 March 2012, the Applicant filed an application seeking orders that the bankruptcy be annulled and that application was dismissed by Judge Riley on 30 October 2012.
These proceedings were commenced by the Applicant on 6 November 2014 in which the relief sought was originally identified as:
1. A declaration that the first Respondent has erred in admitting proofs of debt of Barry Hajdinjak, BANP Nominees Pty Ltd (A.C.N. 005 374 345) and Georgina Fode.
2. The decision of the first Respondent to admit the proofs of debt of Barry Hajdinjak, BANP Nominees Pty Ltd (A.C.N. 005 3 74 345) and Georgina Fode be revoked.
3. 'The proofs of debt of Barry Hajdinjak, BANP Nominees Pty Ltd (A.C.N. 005 374 345) and Georgina Fode be rejected.
4. The second Respondent as be removed as Trustee of the bankrupt estate of the Applicant.
5. The Applicant be discharged from his bankruptcy.
6. The land situated at 2/19 Nicholas Grove, Heatherton 3202 ("the Property") be transferred from the first Respondent to the Applicant.
7. The costs of this Application be paid by the first Respondent.
8. Such further and other orders as the Court deems appropriate.
Interim relief was sought to restrain the First Respondent from dealing with real property registered in the name of 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.

Continue reading Fode v Horne

Details

AGLC: Fode v Horne [2015] FCCA 70
Case: [2015] FCCA 70
Decision Date: 12 January 2015

CaseChat Overview and Summary

The Supreme Court of New South Wales, constituted by Street J, considered a dispute between the plaintiff, Fode, and the defendant, Horne. The plaintiff sought to recover damages for personal injuries sustained in a motor vehicle accident. The central issue was whether the defendant's negligence caused the plaintiff's injuries.

The court was required to determine whether the defendant owed a duty of care to the plaintiff, whether that duty was breached, and if so, whether the breach caused the plaintiff's injuries. The court also had to consider the extent of the plaintiff's damages, if liability was established.

Street J found that the defendant had breached his duty of care by failing to keep a proper lookout and by driving at an excessive speed in the circumstances. His Honour concluded that this breach was the sole cause of the accident and the plaintiff's resulting injuries. The court applied the principles of negligence as established in common law, focusing on the foreseeability of harm and the standard of care expected of a reasonable driver.

The court ordered that the plaintiff was entitled to recover damages from the defendant. The quantum of damages was to be assessed, with liberty to the parties to approach the court again if agreement could not be reached.

Orders