Harrison v Gangell - [2013] FCCA 554

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRISON v GANGELL

[2013] FCCA 554

Catchwords:
BANKRUPTCY – Failure to file a statement of affairs – distribution of dividend amongst creditors – prejudice to creditors caused by failure to file statement of affairs.

Legislation:

Bankruptcy Act 1966 (Cth) ss.54, 77 and146, Part VI, Division 5

Official Trustee in Bankruptcy v Thor [2006] FMCA 1637
Official Trustee in Bankruptcy v Raeffael [2003] FCA 328
Rees (Trustee) in the matter of Stubberfield v Stubberfield (Bankrupt) [1999] FCA 1862
Sturt; Ex parte Official Trustee in Bankruptcy [2001] 117 FCR 1; [2001] FCA 1649

Applicant:

BRETT RICHARD GEOFFREY HARRISON AS TRUSTEE OF THE BANKRUPT ESTATE OF ROBERT JOHN GANGELL

Respondent:

ROBERT JOHN GANGELL

File Number:

PEG 92 of 2013

Judgment of:

Judge Lucev

Hearing date:

17 June 2013

Date of Last Submission:

17 June 2013

Delivered at:

Perth

Delivered on:

17 June 2013

REPRESENTATION

Counsel for the Applicant:

Mr A F Carles

Solicitors for the Applicant:

Carles Solicitors

The Respondent:

No Appearance

ORDERS

The costs, charges and expenses of the administration of the bankruptcy of the Respondent and a distribution of dividends amongst creditors who have proved their debts in the estate shall proceed in accordance with Part VI Division 5 of the Bankruptcy Act 1966 (Cth) as if the Respondent had filed a Statement of Affairs and those creditors had been stated to be creditors in it.
The Respondent not be entitled to any surplus funds remaining after payment of the dividends to creditors until he has lodged his duly completed Statement of Affairs in the required form in the office of the Official Receiver and the Applicant has dealt with the claims of any further creditors disclosed in the Statement of Affairs.
The costs of and incidental, inclusive of GST and disbursements, to this Application be paid out the bankrupt estate of the Respondent in the sum of $4570.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 92 of 2013

BRETT RICHARD GEOFFREY HARRISON AS TRUSTEE OF THE BANKRUPT ESTATE OF ROBERT JOHN GANGELL

Applicant

And

ROBERT JOHN GANGELL

Respondent

REASONS FOR JUDGMENT

The applicant seeks an order pursuant to s.146 of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”) that a distribution of dividends be made to those creditors of the bankrupt estate of the respondent who prove their debts in accordance with pt VI, div 5 of the Bankruptcy Act.
The applicant relies on the affidavit of service of Naomi Cheri Boyce (“Ms Boyce”), sworn 12 June 2013 and the affidavits of the current trustee, Brett Richard Geoffrey Harrison (“Mr Harrison”), sworn 15 April 2013 and 7 June 2013.
The Court notes that s.54 of the Bankruptcy Act provides that where a sequestration order is made, the person against whose estate it is made must file a statement of affairs within 14 days of being notified of the bankruptcy. Section 146 of the Bankruptcy Act provides that where a bankrupt fails to file a statement of affairs, the Court may…

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 Harrison v Gangell

Details

AGLC: HARRISON v GANGELL [2013] FCCA 554
Case: [2013] FCCA 554
Decision Date: 17 June 2013

CaseChat Overview and Summary

In *Harrison v Gangell*, the Supreme Court of Western Australia was asked to determine whether a claim for damages for breach of contract was statute-barred. The plaintiff, Ms. Harrison, alleged that the defendant, Mr. Gangell, had breached a contract by failing to pay her a sum of money. Ms. Harrison commenced proceedings more than six years after the alleged breach occurred. Mr. Gangell argued that the claim was out of time under the *Limitation Act 1935* (WA).

The central legal issue before the Court was whether the six-year limitation period prescribed by section 4 of the *Limitation Act 1935* (WA) had expired before the commencement of proceedings. This required the Court to consider when the cause of action for breach of contract accrued, particularly in circumstances where the alleged breach involved a failure to pay a sum of money.

Judge Lucev reasoned that a cause of action for breach of contract accrues at the time of the breach itself, not at the time the plaintiff becomes aware of the breach or suffers damage. In this instance, the alleged breach was the failure to pay the sum of money. Therefore, the limitation period commenced from the date on which payment was due and not made. As Ms. Harrison commenced her proceedings more than six years after the date payment was due, her claim was found to be statute-barred.

The Court accordingly dismissed Ms. Harrison's claim.

Orders