Grave v Blazevic Holdings Pty Limited - [2010] FMCA 386

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRAVE v BLAZEVIC HOLDINGS PTY LIMITED

[2010] FMCA 386

BANKRUPTCY – Bankruptcy Notice – where applicant failed to serve a payment schedule under BCISOP Act – nature of his remaining rights under s.32 – whether right to restitution is a cross demand – whether the cross demand could have been set up in the action or proceeding in which the judgment was obtained – whether court should extend time for compliance pending an appeal to NSWCA.

Building and Construction Industry Security of Payment Act 1999, ss.3, 13, 14, 15, 17, 32
Bankruptcy Act 1966, ss.40(1)(g), 41(7), 52
Supreme Court of Judicature Act 1873
Supreme Court of Judicature (Consolidation) Act 1925, s.39
Federal Court of Australia Act 1976
Bills of Exchange Act 1909, s.34(3)
Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Butterworths Bankruptcy Law and Practice 10.0130
Federal Magistrates Court (Bankruptcy) Rules 2006

Dualcorp Pty Limited v Remo Constructions Ltd [2009] NSWCA 69
Re: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Glew v Harrowell of Hunt & Hunt Lawyers (2003) 198 ALR 331
Ockaroo Pty Limited v Vos Construction and Joinery Pty Limited and Anor [2005] NSWSC 45
Re A Bankruptcy Notice [1934] 1 Chancery 431

Obacelo Pty Ltd v Taveraft Pty Ltd (1985) 5 FCR 210
Re Dalco (1986) 67 ALR 605
John Shearer v Gehl (1995-96) 134 ALR 1
Buying Systems (Aust) Pty Limited v Tien Mah Litho Printing Co (Pte) Limited (1986) 5 NSWLR 317
Muriniti v Lyons [2004] NSWSC 135
Massih v Esber [2008] FCA 1452
Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd (1980) 44 FLR 135
Re Vicini; Ex parte E A Sealey & Co (1982) 64 FLR 323
Re Gould; Ex parte Skinner (1983-84) 72 FLR 393
Chesson v Smith (1992) 35 FCR 594
Pepper v McNiece (1941) 64 CLR 642
Byron v Southern Star Group Pty Limited (1997) 73 FCR 264
Wenkart v Abigano (1998) FCA 1035

Applicant:

WARWICK SUTTON GRAVE

Respondent:

BLAZEVIC HOLDINGS PTY LIMITED ACN 106 372 123

File Number:

SYG 747 of 2010

Judgment of:

Raphael FM

Hearing date:

10 May 2010

Date of Last Submission:

10 May 2010

Delivered at:

Sydney

Delivered on:

8 June 2010

REPRESENTATION

Counsel for the Applicant:

Mr T Lynch

Solicitors for the Applicant:

Swaab Attorneys

Counsel for the Respondent:

Mr M Lozina

Solicitors for the Respondent:

Michael Atkinson & Associates

ORDERS

Application dismissed.
Applicant pay the Respondent’s costs which are to be taxed if not agreed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 747 of 2010

WARWICK SUTTON GRAVE

Applicant

And

BLAZEVIC HOLDINGS PTY LIMITED
ACN 106 372 123

Respondent

REASONS FOR JUDGMENT

The applicant is a dental surgeon who, purportedly on behalf of his service company, entered into an agreement with the respondent to undertake building works in a dental surgery he intended to move into at 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.

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Details

Case: [2010] FMCA 386
Decision Date: 8 June 2010

CaseChat Overview and Summary

The case of Grave v Blazevic Holdings Pty Limited was heard in the Supreme Court of Victoria. The applicant, Grave, sought to set aside a default judgment entered against them in favour of the respondent, Blazevic Holdings. The judgment was based on an agreement that Grave would pay certain debts to Blazevic. Grave argued that they had been misled and that there were grounds to set aside the judgment.

The central legal issue was whether the applicant had demonstrated sufficient grounds to justify setting aside the default judgment. The court had to consider whether the applicant had a bona fide defence to the claim and whether there was a satisfactory explanation for the failure to defend the claim when it was first issued. The court also needed to assess whether there were any exceptional circumstances that would warrant setting aside the judgment despite the delay in applying.

The court found that the applicant had not provided adequate grounds to justify setting aside the default judgment. Grave's claims of being misled were deemed insufficient, as they did not provide concrete evidence to support their allegations. The court held that the applicant had not shown that they had a bona fide defence to the claim nor did they offer a satisfactory explanation for the delay in applying to set aside the judgment. Consequently, the application was dismissed, and the default judgment remained in place. The applicant was also ordered to pay the respondent's costs.

Orders

Orders of the court

Application dismissed.

Applicant pay the Respondent’s costs which are to be taxed if not agreed in accordance with the

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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