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Heywood v Sharpe

Heywood v Sharpe

Case [2014] FCCA 2999 23 December 2014

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FEDERAL CIRCUIT COURT OF AUSTRALIA

HEYWOOD v SHARPE

[2014] FCCA 2999

Catchwords:
BANKRUPTCY – Creditor’s petition – creditor’s petition lapses – whether Court has power under the “slip rule” to extend the life of the creditor’s petition after the creditor’s petition has lapsed – observations on the availability of the slip rule as a source of power to make order extending the life of a creditor’s petition after the time limited by s.52(5) of the Bankruptcy Act 1966 (Cth) (Act) for making such order has expired – observations on whether Full Federal Court might wish to reconsider its decision in Re Young; Ex parte Smith (1985) 5 FCR 204 that s.33(1)(c) is not a source of power for making an order for extending the life of a creditor’s petition after the time limited by s.52(5) of the Act for making such order has expired.

Legislation:

Bankruptcy Act 1966 (Cth), ss.33(1)(c), 52(4), 52(5)

Corporations Act 2001 (Cth), ss.6(1), 70, 459E, 459F(2)(a), Part 2.1
Federal Circuit Court of Australia Act 1999 (Cth), ss.43(2)(b), 74
Federal Circuit Court Rules 2001 (Cth), rr.1.05(2), 16.02, 16.05(1), 16.05(2)(c), 16.05(2)(d), 16.07, 16.08, Part 16
Federal Court of Australia Act 1976 (Cth), s.4
Federal Court Rules 2011 (Cth), rr.39.05, 39.05(h)

Aussie Vic Plant Hire Pty Ltd v Esanda FinanceCorporation Ltd (2008) 232 CLR 314
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Flint v Richard Busuttil & Company Pty Ltd (2013) 216 FCR 375
Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554
L Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (No.2) (1982) 151 CLR 590
Piersons Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor(No.3) [2010] FMCA 250
Re Young; Ex parte Smith (1985) 5 FCR 204
Richard Busuttil & Co Pty Ltd v Flint; In the Matter of Flint [2013] FCA 575

Applicant:

CHRISTOPHER JOHN HEYWOOD

Respondent:

DAVID GEORGE SHARPE

File Number:

SYG 1569 of 2013

Judgment of:

Judge Manousaridis

Hearing dates:

26 September and 4 November 2014

Date of Last Submission:

14 November 2014

Delivered at:

Sydney

Delivered on:

23 December 2014

REPRESENTATION

Solicitors for the Applicant:

Mr L. Juhasz and Ms R. Heffernan of Coastal Law & Conveyancing Pty Ltd

Respondent appeared by telephone.

ORDERS

Pursuant to r.16.05(1) of the Federal Circuit Court Rules 2001 (Cth), the order made on 26 May 2014 granting the respondent leave to file and serve a copy of the judgment of Judge Delaney of the District Court of New South Wales, together with a very short note about what the relevance of that judgment to what had been submitted to the Court on 26 May 2014 is varied by adding the order:
Pursuant to s.52(5) of the Bankruptcy Act 1966 (Cth) the period at the expiration of which the creditor’s petition filed in these proceedings will lapse will be 24 months commencing on 10 July 2013.
The costs of the application to vary the order made on 26 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 Heywood v Sharpe

Details

AGLC: Heywood v Sharpe [2014] FCCA 2999
Case: [2014] FCCA 2999
Decision Date: 23 December 2014

CaseChat Overview and Summary

In *Heywood v Sharpe*, the parties were the plaintiff, Ms. Heywood, and the defendant, Mr. Sharpe. The dispute concerned the plaintiff's claim for damages for personal injuries sustained in a motor vehicle accident that occurred on 15 March 2019. The matter was heard in the District Court of New South Wales.

The primary legal issue before the court was to determine whether the defendant's negligence caused the plaintiff's injuries. This involved assessing whether the defendant owed a duty of care to the plaintiff, whether that duty was breached, and whether the breach caused the plaintiff's loss. The court also had to consider the extent of the plaintiff's injuries and the appropriate quantum of damages to be awarded.

Judge Manousaridis found that the defendant was negligent in the operation of his vehicle, and that this negligence was the direct cause of the accident and the plaintiff's injuries. The court applied the principles of negligence as established in common law, including the concepts of duty of care, breach of duty, causation, and remoteness of damage. The court accepted the plaintiff's evidence regarding the nature and extent of her injuries, including psychological harm, and awarded damages accordingly.

Orders