Hadid v Schwartz (No.2) - [2013] FCCA 1104

FEDERAL CIRCUIT COURT OF AUSTRALIA

HADID v SCHWARTZ (No.2)

[2013] FCCA 1104

Catchwords:
BANKRUPTCY – Bankruptcy notice – application to extend time for complying with bankruptcy notice – application to reopen case to extend time.

Legislation:

Bankruptcy Act 1966 ss.41(6A)

Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22

Applicant:

ALBERT HADID

Respondent:

JERRY SCHWARTZ

File Number:

SYG 1549 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

9 August 2013

Delivered at:

Sydney

Delivered on:

9 August 2013

REPRESENTATION

The Applicant:

Mr A. Hadid in person

Solicitors for the Respondent:

Ms S. Borg
Neville & Hourn Legal

ORDERS

The Applicant’s application to reopen his case is dismissed.
The Applicant pay the respondent’s costs of the application.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1549 of 2013

ALBERT HADID

Applicant

And

JERRY SCHWARTZ

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

On 2 August 2013, I heard an application pursuant to s.41(6A) of the Bankruptcy Act1966 for an order to extend time for complying with a bankruptcy notice issued by the respondent against the applicant. At the conclusion of that hearing I reserved my decision on the application, and indicated I would deliver my decision at 9.30 am on 9 August 2013. I extended the time for complying with the bankruptcy notice to 9 August 2013.
Yesterday my associate received an email from the applicant attaching a document which stated that the applicant wished to personally seek permission to make a submission set out in that document and to rely on the matters contained in an unsworn affidavit, which was also attached to the email. When the matter was called before me this morning, the applicant appeared and applied to file in Court the affidavit which had been delivered to my associate, but now sworn and attaching various documents, and to make submissions on the basis of the matters contained in the affidavit. That application was opposed by the respondent.
The matter in aid of which the applicant seeks to rely on this material is the application for an extension of time for compliance with the bankruptcy notice which I heard on 2 August 2013. Having reserved my decision on that application, the application before me this morning is, in substance, an application by the applicant to reopen his case. In order to succeed on such application, the applicant will need to satisfy me that, according to well-known principles which govern the power of the Court to permit a party to reopen is or her case, I should grant the applicant leave to do just that.
The principles governing the exercise of the discretion to permit a party to reopen the case were summarised by Kenny J in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]. Her Honour said:
The authorities indicate that, broadly speaking, there are four recognised classes of case in which a Court may grant leave to reopen, although these classes overlap and are not exhaustive. These four classes are:
(1) Fresh evidence.
(2) Inadvertent…

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: [2013] FCCA 1104
Decision Date: 9 August 2013

CaseChat Overview and Summary

In the matter of *Hadid v Schwartz (No.2)*, the parties involved were the plaintiff, Mr. Hadid, and the defendant, Mr. Schwartz. The dispute concerned Mr. Schwartz's alleged breach of a settlement agreement, which Mr. Hadid sought to enforce. The proceedings were heard in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether Mr. Schwartz had breached the terms of the settlement agreement by failing to make a payment by the stipulated deadline. This involved an interpretation of the agreement's clauses regarding payment obligations and the consequences of default.

Judge Manousaridis found that Mr. Schwartz had indeed breached the settlement agreement by failing to make the required payment by the agreed date. The Court applied the principles of contract law, focusing on the clear and unambiguous terms of the settlement agreement. The judge determined that the plain meaning of the relevant clause imposed a strict obligation to pay by a specific date, and that this obligation had not been met. The Court also considered the consequences of default as outlined in the agreement.

The Court ordered that Mr. Schwartz was liable to Mr. Hadid for the outstanding amount under the settlement agreement, along with interest and costs.

Orders