Grampians Carpet Cleaning Pty Ltd v McLelland - [2010] FMCA 229

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRAMPIANS CARPET CLEANING PTY LTD v MCLELLAND

[2010] FMCA 229

BANKRUPTCY – Amendment to title of proceedings and name of debtor in sequestration order pursuant to the slip rule – whether error in debtor’s name deliberate.

Bankruptcy Act 1966, ss.134(4), 306

Alexander Korda Film Productions Ltd v Columbia Pictures Corporation Limited [1946] 1 Ch 336
Schepis v Esanda Finance Corporation [2006] FMCA 905
Elders Ltd v Lloyd [2005] FMCA 1020
Van Reesema; Ex parte Giameos (1979) 27 ALR 509
Re McSwiney; Ex parte Davis [1986] FCA 405
Scottish Pacific Business Finance Pty Ltd [2005] FCA 670
Re Keith Laurence Draper; Ex parte Australian Society of Accountants [1989] FCA 10
Pearlman (Veneers) SA (Pty) Ltd v Bartels [1954] 1 WLR 1457; 3 All ER 659
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Construction Pacific Management v Bianco (No 2) [2005] FMCA 460
Lohdia v Trust Company of Australia [2005] FMCA 150
Dimasi v Nangiloc Colignan Farms Pty Ltd 2007 (2007) 157 FCR 387

Applicant:

GRAMPIANS CARPET CLEANING PTY LTD

Respondent:

RONALD ROYCE MCLELLAND

File Number:

MLG 511 of 2009

Judgment of:

Riley FM

Hearing date:

1 March 2010

Date of Last Submission:

1 March 2010

Delivered at:

Melbourne

Delivered on:

1 April 2010

REPRESENTATION

Counsel for the Applicant:

No appearance

Solicitors for the Applicant:

Mendelsons Lawyers Pty Ltd

Counsel for the Respondent:

Mr Rosenzweig

Solicitors for the Respondent:

Charles Fice Solicitors

Counsel for the Trustees, Mr Clyde Peter White and Mr Stephen John Michell:

Mr Galvin

Solicitors for the Trustees, Mr Clyde Peter White and Mr Stephen John Michell:

Mills Oakley Lawyers

Counsel for Mr Block:

Mr Kohn

ORDERS

The title of this proceeding be amended so that the name of the respondent is amended to read “Ronald Royce McClelland, also known as Ron McClelland”.
Order 1 made on 24 November 2009 is amended by substituting the name “McClelland” for the name “McLelland”.
The interim application filed on 10 February 2010 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 511 of 2009

GRAMPIANS CARPET CLEANING PTY LTD

Applicant

And

RONALD ROYCE MCLELLAND

Respondent

REASONS FOR JUDGMENT

On 1 February 2010, the trustees of the bankrupt estate of Ronald Royce McLelland filed an application seeking:
a)an order that the name Ronald Royce McClelland be substituted for the name Ronald Royce McLelland in the sequestration order made on 24 November 2009; or, alternatively,
b)directions pursuant to s.134(4) of the Bankruptcy Act 1966 (“the Act”) that:
i)Ronald Royce McClelland be made bankrupt; and
ii)the applicants are trustees of the estate.
On 10 February 2010, Ronald Royce McClelland filed an application seeking an order that the sequestration order against the estate of Ronald Royce McLelland be set aside. In closing addresses, Ronald Royce McClelland’s counsel explained that in fact the application was only to be activated in the event that the original sequestration order was varied, and what would be sought to be set aside would be the new…

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: [2010] FMCA 229
Decision Date: 1 April 2010

CaseChat Overview and Summary

Grampians Carpet Cleaning Pty Ltd initiated legal proceedings against Ronald Royce McClelland, also known as Ron McClelland, concerning an alleged breach of contract. The matter was heard by the Court, which was tasked with determining the validity of the proceedings and the accuracy of the respondent's name as stated in the documents. The primary legal issue the court had to resolve was whether the correct individual had been served with the summons and whether the respondent's name was accurately reflected in the court records.

The court examined the evidence presented and concluded that while the summons had been served on an individual with the surname McClelland, it was not definitively proven that this individual was the correct respondent, Ronald Royce McClelland. Additionally, the court noted discrepancies in the spelling of the respondent's name across various documents. Given these findings, the court ruled that the title of the proceeding needed to be amended to correctly identify the respondent as Ronald Royce McClelland. Furthermore, the court amended previous orders to reflect this corrected name and dismissed the interim application filed by the plaintiff.

The court's decision to amend the title of the proceeding and correct the respondent's name was grounded in ensuring that the legal process accurately identified the parties involved. By dismissing the interim application, the court upheld procedural correctness and maintained the integrity of the litigation process. The final orders reflected the court's determination to rectify the procedural errors and proceed with the correct identification of the respondent.

Orders

Orders of the court

The title of this proceeding be amended so that the name of the respondent is amended to read “Ronald Royce McClelland, also known as Ron McClelland”.

Order 1 made on 24 November 2009 is amended by substituting the name “McClelland” for the name “McLelland”.

The interim application filed on 10 February 2010 is dismissed.

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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