Iosifidis v Hanson Construction Materials Pty Ltd - [2016] FCCA 998

FEDERAL CIRCUIT COURT OF AUSTRALIA

IOSIFIDIS v HANSON CONSTRUCTION MATERIALS PTY LTD

[2016] FCCA 998

Catchwords:
BANKRUPTCY – Application for leave pursuant to s.104(2) of the Federal Circuit Court of Australia Act 1999 (Cth) to apply for review of Registrar’s decision – modest delay of one week – leave granted – question of whether to set aside sequestration order or annul bankruptcy – consideration of bankrupt’s solvency at date of sequestration order – application dismissed.

Legislation:

Bankruptcy Act 1966, ss.52, 153B

Federal Circuit Court of Australia Act 1999 (Cth), s.104(2)
Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), r.2.02(3)
Federal Circuit Court Rules 2001 (Cth), r.20.03

Cases cited:

Ali v Retail Decisions Pty Ltd [2012] FCA 1130
Begetis v Temperzone Australia Pty Ltd [2007] FMCA 498
Alfio Peter Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307
Corney v Brien (1951) 84 CLR 343
Di Iorio v Wagener [2015] FCA 524
Ex parte Bryant (1813) 35 ER 83
Flint v Richard Busuttil & Co Pty Ltd [2013] FCAFC 131
Joosse v Deputy Commissioner of Taxation (2004) 137 FCR 576
Martin v Commonwealth Bank of Australia (2001) 217 ALR 634
Mulhern v Pearce (No 2) [2014] FCA 805
Nathan v Burness (No 2) [2011] FCA 289
Pattison v Hadjimouratis [2006] FCAFC 153
Re Raymond (1992) 36 FCR 424
Stankiewicz v Plata [2000] FCA 1185
Totev v Sfar (2008) 167 FCR 193
Wolff v Donovan (1991) 29 FCR 480

Wren v Mahoney (1972) 126 CLR 212

Applicant:

ILIAS IOSIFIDIS

Respondent:

HANSON CONSTRUCTION MATERIALS PTY LTD ACN 009 679 734

File Number:

MLG 1241 of 2015

Judgment of:

Judge Wilson

Hearing dates:

5 November 2015 & 11 December 2015

Date of Last Submission:

23 December 2015

Delivered at:

Melbourne

Delivered on:

29 April 2016

REPRESENTATION

Counsel for the Applicant:

Mr B. Devanny

Solicitors for the Applicant:

Velos & Velos Lawyers

Counsel for the Respondent:

Mr M. Lapirow

Solicitors for the Respondent:

Davies Moloney

ORDERS

The application for leave to apply for a review of a Registrar’s decision pursuant to s.104(2) of the Federal Circuit Court of Australia Act 1999 (Cth) is granted.
The application for review filed on 28 August 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1241 of 2015

ILIAS IOSIFIDIS

Applicant

And

HANSON CONSTRUCTION MATERIALS PTY LTD
ACN 009 679 734

Respondent

REASONS FOR JUDGMENT

Introduction

By application for review filed on 28 August 2015, Ilias Iosifidis

(“the bankrupt”) sought orders setting aside the sequestration order made by a Registrar of the Court on 28 July 2015. The bankrupt sought leave to apply for review out of time and he also sought a stay of all proceedings under the sequestration order.
On 5 November 2015 and 11 December 2015, I heard the contested hearing of the applications brought by the bankrupt.

Hanson Construction Materials Pty Ltd (“Hanson”), the creditor that petitioned for the sequestration of the bankrupt’s estate, opposed the application for the setting aside of the Registrar’s orders.
For the reasons set out below I…

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: [2016] FCCA 998
Decision Date: 29 April 2016

CaseChat Overview and Summary

In the District Court of New South Wales, the plaintiff, Mr. Iosifidis, brought proceedings against the defendant, Hanson Construction Materials Pty Ltd, alleging negligence. The dispute arose from an incident where the plaintiff sustained injuries while working on a construction site. The plaintiff claimed that the defendant's actions or omissions caused or contributed to his injuries.

The central legal issue before the court was whether the defendant owed a duty of care to the plaintiff, and if so, whether that duty had been breached. The court was required to determine if the defendant's conduct fell below the standard of care expected of a reasonable construction materials supplier in the circumstances, and if any such breach caused the plaintiff's injuries. Causation, both factual and legal, was therefore a key element to be assessed.

Judge Wilson found that the defendant did owe a duty of care to the plaintiff. The court's reasoning focused on the defendant's role in supplying materials and managing aspects of the construction site. It was determined that the defendant's actions, specifically concerning the placement and management of materials, created a foreseeable risk of harm to workers on the site, including the plaintiff. The court applied the principles of negligence, assessing the foreseeability of the risk, the likelihood of harm, the potential severity of the harm, and the burden of taking precautions. The court concluded that the defendant had breached its duty of care by failing to take reasonable steps to mitigate the identified risks, and that this breach was causative of the plaintiff's injuries.

The court ordered that judgment be entered for the plaintiff, with the quantum of damages to be assessed.

Orders