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.
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
The application for an interim order extending the period for compliance with bankruptcy notice BN 188586 be dismissed.
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
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.
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 Fox v Big Country Developments Pty Ltd
Sign in free to access the full text
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.