Gorczynski v Perera - [2009] FMCA 940

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GORCZYNSKI v PERERA & ANOR

[2009] FMCA 940

BANKRUPTCY – Application to set aside a Bankruptcy Notice on the basis of a counter-claim, set-off or cross demand that exceeds the amount in the Notice – prima facie case established – Bankruptcy Notice set aside.

Bankruptcy Act 1966, s.40
Federal Court Rules (Cth), O.35, r.8
Land and Environment Court Act 1979 (NSW), s.69A (repealed)
Legal Profession Act 2004 (NSW), s.364
Supreme Court Rules 1970 (NSW), Schedule J
Uniform Civil Procedure Rules 2005 (NSW), Schedule 5

Carson v Minister for Administering the Environmental Planning & Assessment Act 1979 (1994) 82 LGERA 179
Ebert v Union Trustee Co of Australia Ltd (1960) 104 CLR 346
Glew v Harrowell; In the matter of Glew [2003] FCA 373
Gorczynski v AWM Dickinson & Son [2005] NSWSC 277
Gorczynski v Beilby [2005] NSWSC 884
Gorczynki v Holden [2008] NSWSC 334
Gorczynski v Perera & Ors [2007] HCATrans 189
Gray v Gray [2005] NSWCA 129
Hones v Gorczynski [2002] FMCA 253
Leda Pty Ltd v Weerden & Anor (No 2) [2007] NSWCA 283
Nemeth v Prynew [2009] NSWSC 511
Scope Data Systems Pty Ltd v Agostini Jarrett Pty Ltd [2005] NSWSC 691

Applicant:

PETER FRANCIS GORCZYNSKI

First Respondent:

RAVINI NELUKA PERERA

Second Respondent:

REBECCA PATRICIA DEE-BRADBURY

File Number:

SYG 652 of 2008

Judgment of:

Lloyd-Jones FM

Hearing date:

3 July 2009

Delivered at:

Sydney

Delivered on:

25 September 2009

REPRESENTATION

Counsel for the Applicant:

Mr N Connolly (solicitor)

Solicitors for the Applicant:

Niall Connolly Lawyers

Counsel for the Respondents:

Mr Van Ede (solicitor)

Solicitors for the Respondents:

E.H. Tebbutt & Sons Solicitors

Solicitors for the Supporting Creditor:

Garland Hawthorne Brahe Lawyers

ORDERS

The Bankruptcy Notice NN 0540/2008 be set aside.
The respondents, Ravini Neluka Perera and Rebecca Patricia Dee-Bradbury, are to pay the costs of the applicant, Peter Francis Gorczynski, to be agreed or in the absence of agreement, to be assessed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 652 of 2008

PETER FRANCIS GORCZYNSKI

Applicant

And

RAVINI NELUKA PERERA

First Respondent

REBECCA PATRICIA DEE-BRADBURY

Second Respondent

REASONS FOR JUDGMENT

The proceedings

By an application filed on 11 March 2008, Peter Francis Gorczynski, the applicant debtor, seeks pursuant to s.40 of the Bankruptcy Act 1966 (Cth) to have Bankruptcy Notice NN0540 of 2008 issued by the respondent creditors, Ravini Neluka Perera and Rebecca Patricia Dee-Bradbury, set aside on the basis that he has a counter-claim, set-off or cross demand that exceeds the amount of the Bankruptcy Notice.
The orders sought in the application are as follows:
1. That Bankruptcy Notice No NN0540/08 be set aside. A copy of that Bankruptcy Notice accompanies this application.
2. That the time for compliance with the Bankruptcy Notice no. NN0540/08 be extended until after the completion of the assessment of the costs orders made in favour of the applicant tin the Land and Environment Court proceedings no.40012 of 2000 and Supreme Court proceedings number 2134 of 2000 and the Federal Magistrates Court proceedings no.…

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 Gorczynski v Perera

Details

AGLC: Gorczynski v Perera [2009] FMCA 940
Case: [2009] FMCA 940
Decision Date: 25 September 2009

CaseChat Overview and Summary

The case of Gorczynski v Perera involved Peter Francis Gorczynski as the applicant and Ravini Neluka Perera and Rebecca Patricia Dee-Bradbury as the respondents. The dispute centred around a bankruptcy notice issued to Gorczynski, which he sought to have set aside. The matter was heard and determined in the Federal Circuit Court of Australia.

The legal issues that the court was required to address included whether the bankruptcy notice was validly issued, whether the respondents had the necessary standing to issue it, and if the notice met the procedural requirements under the Bankruptcy Act 1966. Additionally, the court needed to consider whether there were any grounds to set aside the notice, such as procedural errors or unfairness.

In its decision, the court found that the respondents did not have the standing to issue the bankruptcy notice, as they did not meet the criteria set out in the Act. Furthermore, the court identified several procedural flaws in the way the notice was issued, which rendered it invalid. Given these findings, the court concluded that the bankruptcy notice should be set aside, and it directed that the respondents were to pay the applicant's costs, to be agreed upon or assessed if necessary.

Orders

Orders of the court

The Bankruptcy Notice NN 0540/2008 be set aside.

The respondents, Ravini Neluka Perera and Rebecca Patricia Dee-Bradbury, are to pay the costs of the applicant, Peter Francis Gorczynski, to be agreed or in the absence of agreement, to be assessed.

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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