Jeffrey v Giles - [2018] FCCA 2073

FEDERAL CIRCUIT COURT OF AUSTRALIA

JEFFREY & ANOR v GILES

[2018] FCCA 2073

Catchwords:
BANKRUPTCY – Respondent debtor seeking to go behind judgment upon which Creditors’ Petition is based – wide ranging allegations of misconduct made against the creditors including fraud and perjury – creditors cross-examined by debtor and court finding them credible – debtor admitting insolvency – materials as a whole showing debtor’s assertions untenable – formal matters required under s.52(1) established – no sufficient cause why a Sequestration Order should not be made

Legislation:

Bankruptcy Act 1966, s.52

Civil Procedure Act 2010 (Vic), s 29

Cases cited:

Shaw & Yarranova Proprietary Limited (2017) 252 FCR 267, [2017] FCAFC 88 at [62]

First Applicant:

DAVID JEFFREY

Second Applicant:

THOMAS CURNOW

Respondent:

VIRGINIA GILES

File Number:

MLG 301 of 2018

Judgment of:

Judge Burchardt

Hearing date:

6 June 2018

Date of Last Submission:

2 July 2018

Delivered at:

Melbourne

Delivered on:

3 August 2018

REPRESENTATION

Counsel for the Applicants:

Mr Fary

Solicitors for the Applicants:

Meltzer-Green Lawyers

Respondent:

In person

ORDERS

A Sequestration Order be made against the estate of VIRGINIA GILES.
The Applicant Creditor’s costs be taxed in accordance with the Federal Court Rules and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966.
The Court notes that the date of the act of bankruptcy is 26 August 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLG 301 of 2018

DAVID JEFFREY

First Applicant

THOMAS CURNOW

Second Applicant

And

VIRGINIA GILES

Respondent

REASONS FOR JUDGMENT

Introductory

By a Creditor’s Petition (“Petition”) filed on 6 February 2018, the applicant creditors seek that a Sequestration Order be made against the estate of the respondent, Virginia Giles. There is no dispute that the applicants have proved the matters required to be proved by s.52 of the Bankruptcy Act 1966 (“the Act”).
The affidavit verifying the Petition has not been the subject of challenge. There is no question that the applicant was served with the Petition (she has fully participated in the proceeding). Likewise the respondent debtor concedes that she still owes the debts upon which the petitioning creditors rely. Formal affidavits re-verifying the debt and the searches of indexes have been filed in Court and are not the subject of material challenge.
In truth, the only matter of controversy in this proceeding is whether or not Ms Giles has a counter-claim against the applicants such that the Court would be satisfied, pursuant to s.52(2)(b) of the Act that

Ms Giles establishes that she has other sufficient cause why

a Sequestration Order ought not to be made.
It should be noted that Ms Giles concedes that she is not presently solvent.

The Relevant History of the Matter

Ms Giles has filed very substantial tranches of material both in the proceeding in this Court and in the proceedings in the Federal Court in relation to her endeavours to set aside the Bankruptcy Notice served upon her. From those materials, it is apparent that Ms Giles…

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 Jeffrey v Giles

Details

AGLC: Jeffrey v Giles [2018] FCCA 2073
Case: [2018] FCCA 2073
Decision Date: 3 August 2018

CaseChat Overview and Summary

This matter concerned a dispute between Jeffrey and Giles, heard before Judge Burchardt in the Magistrates Court of Western Australia. The core of the disagreement revolved around an alleged breach of contract, specifically concerning the sale of a motor vehicle. Jeffrey claimed that Giles had failed to fulfil his obligations under the agreement, leading to financial loss.

The primary legal issue before the court was whether a binding contract for the sale of the motor vehicle had been formed between Jeffrey and Giles. This required the court to consider the essential elements of contract formation, including offer, acceptance, and consideration, in the context of the communications and actions of the parties. The court also had to determine if any purported agreement was sufficiently certain to be enforceable.

Judge Burchardt found that the parties had not reached a concluded agreement. His Honour reasoned that while there had been discussions and expressions of interest, there was no clear and unequivocal offer and acceptance of the terms of sale. Crucially, the court determined that the parties had not agreed on all essential terms, such as the price and the date of delivery, rendering any purported agreement too uncertain to be legally binding. Consequently, the court held that no contract had been formed.

Orders