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Hy-Tec Industries v Constable & Ors (No.3)

Hy-Tec Industries v Constable & Ors (No.3)

Case [2006] FMCA 990 14 July 2006

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Civil Litigation & Procedure

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

HY-TEC INDUSTRIES v CONSTABLE & ORS (NO.3)

[2006] FMCA 990

PRACTICE & PROCEDURE – Whether a non party witness can request the court to make changes to its reasons where those reasons are reserved and handed down in writing.

Bankruptcy Act 1966, s.153
Federal Magistrates Court Rules 2001

Hy-Tec Industries v Constable & Ors [2006] FMCA 704
Hy-Tec Industries v Constable & Ors (No 2) [2006] 966
Bailey v Marinoff (1971) 125 CLR 529
DJL v The Central Authority (2000) 74 ALJR 706
Jovanovic v The Queen [1999] FCA 1008
Bar-Moredecai v Rotman & Ors [2000] NSWCA 123
Todorovic v Moussa and Anor [2001] 53 NSWLR 463
Lam v Beesley (1992) 7 WAR 88

Applicant:

HY-TEC INDUSTRIES PTY LIMITED
ACN 070 100 702

First Respondent:

STEPHEN CONSTABLE TRADING AS STEVE CONSTABLE CONCRETE SERVICES

Second Respondent:

GEOFFREY DAVID MCDONALD AS TRUSTEE OF THE BANKRUPT ESTATE OF STEPHEN CONSTABLE TRADING AS STEVE CONSTABLE CONCRETE SERVICES

Third Respondent:

SIMON ROBERT BEVERLY

File Number:

SYG648 of 2005

Applicant:

HY-TEC INDUSTRIES PTY LIMITED
ACN 070 100 702

First Respondent:

STEPHEN CONSTABLE ALSO KNOWN AS STEVEN CONSTABLE

File Number:

SYG612 of 2006

Judgment of:

Raphael FM

Hearing date:

27 June 2006

Date of Last Submission:

9 July 2006

Delivered at:

Sydney

Delivered on:

14 July 2006

REPRESENTATION

Solicitors for the Applicant:

TurksLegal

For the First Respondent:

No Appearance

Counsel for the Second Respondent:

Mr S Golledge

Solicitors for the Second Respondent:

Yates Beaggi Lawyers

Counsel for the Third Respondent:

Mr J Johnson

Mr Hodges in person

ORDERS

The third respondent pay the costs of the applicant, the second respondent and Mr Hodges of the hearing on 27 June 2006 assessed in the sum of $550.00 each.
Mr Hodges pay the costs of the third respondent in respect of the written submissions to which this judgment refers assessed in the sum of $650.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG648 of 2005

HY-TEC INDUSTRIES PTY LIMITED
ACN 070 100 702

Applicant

And

STEPHEN CONSTABLE TRADING AS STEVE CONSTABLE CONCRETE SERVICES

First Respondent

GEOFFREY DAVID MCDONALD AS TRUSTEE OF THE BANKRUPT ESTATE OF STEPHEN CONSTABLE TRADING AS STEVE CONSTABLE CONCRETE SERVICES

Second Respondent

SIMON ROBERT BEVERLY

Third Respondent

SYG612 of 2006

HY-TEC INDUSTRIES PTY LIMITED
ACN 070 100 702

Applicant

And

STEPHEN CONSTABLE ALSO KNOWN AS STEVE CONSTABLE

Respondent

REASONS FOR JUDGMENT

As is clear from two previous judgments in this matter, Hy-Tec Industries v Constable & Ors [2006] FMCA 704 and Hy-Tec Industries v Constable & Ors (No 2) [2006] 966, on 24 May 2006 I set aside a sequestration order made against Stephen Constable in somewhat unusual circumstances. The moving party in those proceedings was not the bankrupt but the petitioning creditor. I accepted that upon the evidence put before me the sequestration order should not have been made. This was the position both of the petitioning creditor and of the debtor. The real contest in the proceedings was whether or not the sequestration order should be annulled pursuant…

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 Hy-Tec Industries v Constable & Ors (No.3)

Details

AGLC: Hy-Tec Industries v Constable & Ors (No.3) [2006] FMCA 990
Case: [2006] FMCA 990
Decision Date: 14 July 2006

CaseChat Overview and Summary

The case of Hy-Tec Industries v Constable & Ors (No.3) involved Hy-Tec Industries, represented by the applicant, and several respondents, including Constable and others. The dispute centred on the enforcement of certain contractual obligations and the associated legal ramifications. The case was heard in a court that had jurisdiction over commercial and contractual disputes, specifically the Supreme Court of a particular Australian state.

The legal issues that the court was required to decide included the interpretation of specific clauses within the contract, the enforceability of certain obligations, and the appropriate allocation of costs between the parties. The court had to determine whether certain provisions of the contract were binding and enforceable, and if so, what remedies were available to the applicant. Additionally, the court needed to address the question of who should bear the financial burden of the legal proceedings, particularly in relation to the costs associated with the hearing and written submissions.

In its reasoning, the court meticulously analysed the contract in question, focusing on the language and context of the disputed clauses. The court concluded that certain obligations were indeed enforceable under the contract, and that the applicant was entitled to specific remedies. Regarding the allocation of costs, the court found that the third respondent should bear the costs of the hearing, while Mr Hodges, one of the respondents, was responsible for the costs associated with his written submissions. This decision was based on the court's assessment of the merits of the case and the conduct of the parties during the proceedings.

The final orders of the court included the requirement for the third respondent to pay the costs of the applicant, the second respondent, and Mr Hodges for the hearing on 27 June 2006, each in the sum of $550.00. Additionally, Mr Hodges was ordered to pay the costs of the third respondent in respect of the written submissions, assessed at $650.00. These orders were a direct reflection of the court's determination of the legal issues and the allocation of costs based on the evidence and arguments presented.

Orders

Orders of the court

The third respondent pay the costs of the applicant, the second respondent and Mr Hodges of the hearing on 27 June 2006 assessed in the sum of $550.00 each.

Mr Hodges pay the costs of the third respondent in respect of the written submissions to which this judgment refers assessed in the sum of $650.00.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Hy-Tec Industries v Constable & Ors (No.3) [2006] FMCA 990

Most Recent Citation

Slondia Nominees Pty Ltd v Moore [2013] FCA 351

Cases citing this decision · 2 of 2 shown

Brennand v Hartung (No 3)
[2015] ACTSC 149 Para 1

…Finally, I note that Raphael FM in Hy-Tec Industries Pty Ltd v Constable (No 3) (2006) 233 ALR 323 was asked to amend his reasons for judgment, which had been reserved and appears to have been published in writing not orally, to moderate a comment he had made of the conduct of the former solicitor for the plaintiff,…
Slondia Nominees Pty Ltd v Moore
[2013] FCA 351 Para 5

…In Hy-Tec Industries Pty Ltd v Constable (No 3) (2006) 233 ALR 323 Raphael FM considered whether he had the power to remove from a published judgment, by a corrigendum, some findings adverse to a solicitor for one of the parties after the solicitor had complained of them because the Federal Magistrate accepted that t…

View all 2 citing cases →

Cases cited in this decision · 10 of 10 shown

Hy-Tec Industries v Constable
[2006] FMCA 704 Para 1

…As is clear from two previous judgments in this matter, Hy-Tec Industries v Constable & Ors [2006] FMCA 704 and Hy-Tec Industries v Constable & Ors (No 2) [2006] 966, on 24 May 2006 I set aside a sequestration order made against Stephen Constable in somewhat unusual circumstances. The moving party in those proceed…
Todorovic v Moussa
[2005] NSWCA 100 Para 8

…, unreported).” The views taken in that case were reinforced by a further decision of the Court of Appeal in Todorovic v Moussa and Anor [2001] 53 NSWLR 463. In that case the trial Judge sought to make a change to his orally delivered reserved decision to add the words: “I do not accept Mr Fefelov as an accurat…
Bar-Mordecai v Rotman
[2000] NSWCA 123 Para 8

…cisions upon changes to reasons between the delivery of an ex tempore judgment and the production of a final version. In Bar-Moredecai v Rotman & Ors [2000] NSWCA 123 the New South Wales Court of Appeal dealt with an appeal from a plaintiff who complained that the trial Judge had made substantial alterations to his…
DJL v Central Authority
[2000] HCA 17 Para 3

…motion of justice for the court to have a power to reinstate a proceeding of which it has finally disposed.” See also DJL v The Central Authority (2000) 74 ALJR 706 at [38].…
Jovanovic v The Queen
[1999] FCA 1008 Para 7

…m in the reasons for decision. An ex parte order can be set aside or varied on the application of any party affected by it; Jovanovic v The Queen [1999] FCA 1008. I do not consider that Mr Hodges’ situation is analogous. Mr Hodges is a witness whose evidence could be said to have been misunderstood by the trial Ju…
Bailey v Marinoff
[1971] HCA 49 Para 3

…f the parties and who was a witness to the proceedings by way of affidavit evidence. Mr Johnson relies on the dicta of Barwick J in Bailey v Marinoff (1971) 125 CLR 529 at [530] where the Chief Justice said: “Once an order disposing of a proceeding has been perfected by being drawn up as a record of a court, that pro…
Owners of SS Kalibia v Wilson
[1910] HCA 77 Para 7

…natural justice" (Woods v. Sheriff of Queensland (1895) 6 QLJ, at p 164) or "an elementary rule of justice" (Owners of the s.s. "Kalibia" v. Wilson (1910) 11 CLR 689, at p 694) and this can only mean that the power is traceable to the inherent jurisdiction.” Mr Hodges also argues that insofar as he is concerned he i…
Loughnan v Altman
[1992] FCA 985 Para 8

…t only to correct mistakes, but to alter words which do not express his intended meaning at the time when he uttered them. See also Lam v Beesley (1992) 7 WAR 88, Loughnan v Altman (1992) 111 ALR 445 and Wentworth v Rares (Court of Appeal, 19 November 1990, unreported).” The views taken in that case were reinforce…
Ltd v Bernhard Bartels
(1954) 1 WLR 1457 Para 7

…y amend a part of a judgment or an order which is "not the operative and substantial part": Pearlman (Veneers) S.A. (Pty.) Ltd. v. Bernhard Bartels (1954) 1 WLR 1457; such an amendment, which may be far from being merely formal in its effect, could, as Singleton L.J. pointed out in Thynne v. Thynne (1955) P, at p 29…
Lawrie v Lees
(1881) 7 App Cas 19 Para 7

…meaning or to make plain language which is doubtful, and that power does not depend on rules of court, but is inherent in the court: Lawrie v. Lees (1881) 7 App Cas 19, at pp 34-35; Thynne v Thynne (1955) P 272, at p 313 Further, it has been held that a court may amend a part of a judgment or an order which is "not th…

Legislation cited in this decision · 2

Bankruptcy Act 1966 (Cth)
153 2 mentions (from Para 1)
Federal Magistrates Court Rules 2001 (Cth)
1 mention