Fox v Big Country Developments Pty Ltd

Case [2016] FCCA 2447


FEDERAL CIRCUIT COURT OF AUSTRALIA

FOX v BIG COUNTRY DEVELOPMENTS PTY LTD [2016] FCCA 2447
Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – extension of the period within which to comply with the bankruptcy notice – consideration of relevant principles – application dismissed.

Legislation:

Bankruptcy Act 1966 (Cth), ss.40(1), 41(6A), 41 (6C), 43

Federal Circuit Court of Australia Act1999 (Cth), s.104(2)

Cases cited:

Buckworth v Gladio Pty Ltd [2016] NSWCA 104
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264; [1997] FCA 151
Duncan v Big Country Developments Pty Ltd [2016] NSWCA 163
Hovan v Goycolea–Silva [2003] FCA 234
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84
Kakavas v Paradise Enterprises Ltd (2010) 8 ABC(NS) 363; [2010] FCA 915
Lavin v Toppi [2014] FCCA 1228
Lavin v Toppi (2015) 254 CLR 459; [2015] HCA 4
McPhee v Glentham Pty Ltd [2006] FMCA 1508
O’Loughlin v Glenmont Investments Pty Ltd (2001) 191 ALR 336; [2001] FCA 925
Re Taylor; Ex parte Deputy Commissioner of Taxation (1983) 74 FLR 377
Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1
Sharpe v W H Bailey & Sons Pty Ltd (2014) 317 ALR 738; [2014] FCA 921
Shepherd v Chiquita Brands (South Pacific) Ltd [2001] FCA 1394
Tanamerah Estates Pty Ltd v Tibra Capital Pty Ltd [2016] NSWCA 78
Taubert v Eddaglide Pty Ltd [2001] FCA 567
Warner v Frost [1999] FCA 830
Woollard v Australia and New Zealand Banking Group Ltd [2016] NSWCA 258
Zdrilic v Hickie [2016] FCAFC 101

Applicant: JUSTIN ALEXANDER FOX
Respondent: BIG COUNTRY DEVELOPMENTS PTY LIMITED (ACN 000 235 923)
File Number: SYG 552 of 2016
Judgment of: Judge Smith
Hearing date: 13 September 2016
Date of Last Submission: 13 September 2016
Delivered at: Sydney
Delivered on: 11 October 2016

REPRESENTATION

Counsel for the Applicant: Mr J Baird
Solicitors for the Applicant: Benjamin J Horne Lawyer
Counsel for the Respondent: Mr J Horowitz
Solicitors for the Respondent: & Legal

ORDERS

  1. The application for an interim order extending the period for compliance with bankruptcy notice BN 188586 be dismissed.

  2. The application for review of the decision of District Registrar Wall made on 30 August 2016 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 552 of 2016

JUSTIN ALEXANDER FOX

Applicant

And

BIG COUNTRY DEVELOPMENTS PTY LIMITED
(ACN 000 235 923)

Respondent

REASONS FOR JUDGMENT

  1. The respondent in these proceedings, Big Country Developments Pty Limited (“Big Country”), is the registered owner of land at Mulgoa Road, Penrith in Western Sydney which was leased to a company for the purposes of running a licensed restaurant in an existing purpose-built restaurant. The applicant, Mr Fox, was one of the guarantors of the lessee’s obligations to Big Country. On or about 16 March 2008 the lessee ceased paying rent under the lease and in 2011 Big Country commenced proceedings in the Supreme Court of New South Wales against the guarantors.

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Details
AGLC
Fox v Big Country Developments Pty Ltd [2016] FCCA 2447
Case
[2016] FCCA 2447
Decision Date

CaseChat Overview and Summary

In *Fox v Big Country Developments Pty Ltd*, the Supreme Court of Queensland considered a dispute between a vendor, Mr. Fox, and a developer, Big Country Developments Pty Ltd, concerning the sale of a parcel of land. The core of the disagreement revolved around the interpretation of a special condition within the contract of sale, which Mr. Fox alleged had not been satisfied by the developer.

The primary legal issue before the Court was whether the developer had fulfilled its obligations under special condition 12 of the contract. This condition stipulated that the developer was required to obtain all necessary town planning approvals for a specified development on the land by a particular date. Mr. Fox contended that the developer had failed to meet this deadline, thereby entitling him to terminate the contract and retain the deposit.

Judge Smith reasoned that the plain and ordinary meaning of the words in special condition 12 required the developer to obtain *all* necessary town planning approvals, not merely to make an application or to obtain some approvals. The evidence presented indicated that not all required approvals had been secured by the stipulated date. Consequently, the Court found that the developer was in breach of the special condition.

The Court therefore ordered that the contract was validly terminated by Mr. Fox and that he was entitled to retain the deposit paid by Big Country Developments Pty Ltd.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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