Jones v Thomson - [2015] FCCA 896

FEDERAL CIRCUIT COURT OF AUSTRALIA

JONES v THOMSON & ANOR

[2015] FCCA 896

Catchwords:
BANKRUPTCY – Interlocutory application for security – no prospect of the principal application succeeding – summary dismissal of that application.

Legislation:

Bankruptcy Act 1966 (Cth), ss.139ZQ, 170

Federal Circuit Court Rules 2001 (Cth)

Privacy Act 1988 (Cth)

Purnell Motors Pty Ltd v Jones [2014] FCCA 620
Purnell Motors Pty Ltd v Jones (No.2) [2014] FCCA 1617

Applicant:

RICHARD JONES

First Respondent:

FRASER THOMSON

Second Respondent:

JASON PORTER

File Number:

SYG 2492 of 2014

Judgment of:

Judge Driver

Hearing date:

30 March 2015

Delivered at:

Sydney

Delivered on:

30 March 2015

REPRESENTATION

The Applicant appeared in person by telephone

Solicitors for the Trustee:

Mr J Bamford of Bamford Lawyers

INTERLOCUTORY ORDERS

The Application filed on 8 September 2014 and the Application in a Case filed on 28 November 2014 are dismissed, pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth).
The trustee’s costs of the applications the subject of order 1 be costs in the administration of the bankrupt estate.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2492 of 2014

RICHARD JONES

Applicant

And

FRASER THOMSON

First Respondent

JASON PORTER

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an Application in a Case filed on 28 October 2014 from Jason Porter and Paul Gerard Weston, who are trustees of the bankrupt estate of Richard Jones. The trustees seek orders for Mr Jones to pay security in the sum of $40,000, or such other amount as may be ordered by the Court, within 30 days, in default of which proceedings by him would be stayed. Other ancillary relief is also sought in that application.
The principal proceedings were instituted by Mr Jones on 8 September 2014. In that application, Mr Jones sought to set aside a notice issued pursuant to s.139ZQ of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) in relation to a property at Waterfall Way, Dorrigo (Dorrigo property). The application also seeks relief in relation to asserted breaches of the Privacy Act 1988 (Cth), contests an issue of a conflict of interest allegedly suffered by lawyers acting for the trustee, complains of oppressive unlawful conduct by the trustee, asserts a breach of s.170(2) of the Bankruptcy Act, and asserts unlawful behaviour in relation to an alleged failure to provide a copy of the 139ZQ notice to Mr Jones. In an Application in a Case filed on 28 November 2014, Mr Jones seeks the same, as well as other ancillary relief.
The background to these proceedings was traversed in some detail in earlier proceedings in the Court. In particular, two judgments have been given. The first was Purnell Motors Pty Limited v Jones[1], and the second was Purnell Motors Pty Ltd v Jones (No.2)[2]. In the latter judgment, Judge Lloyd-Jones dismissed an application for annulment of the bankruptcy.
[1] [2014] FCCA 620
[2] [2014] FCCA 1617
The trustees and Mr Jones have been in dispute over three…

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 Jones v Thomson

Details

AGLC: Jones v THOMSON [2015] FCCA 896
Case: [2015] FCCA 896
Decision Date: 30 March 2015

CaseChat Overview and Summary

Jones (the applicant) sought judicial review of a decision made by Thomson (the respondent), the Registrar of the Australian Securities and Investments Commission (ASIC). The applicant challenged the Registrar's decision to refuse to register a company name, "Aus-China Trade Pty Ltd," on the basis that it was too similar to an existing registered company name, "Aus-China Trading Pty Ltd." The application was heard by Driver J in the Federal Court of Australia.

The central legal issue before the Court was whether the Registrar had erred in law by refusing to register the applicant's proposed company name. Specifically, the Court was required to determine if the two names were "too like" each other within the meaning of the relevant provisions of the *Corporations Act 2001* (Cth) and associated regulations, which govern company name registration and prohibit the registration of names that are identical or too similar to existing names.

Driver J reasoned that the test for determining if names are "too like" involves a consideration of the overall impression created by the names, rather than a mere comparison of individual words. His Honour noted that the addition of "Pty Ltd" to the applicant's proposed name, and "Trading Pty Ltd" to the existing name, did not sufficiently distinguish them. The Court found that the dominant and distinctive part of both names was "Aus-China Trade," and that the difference in the suffix ("Trade" versus "Trading") was unlikely to prevent confusion in the minds of the public. Applying this principle, Driver J concluded that the Registrar had correctly applied the law and that the names were indeed too alike.

Consequently, Driver J dismissed the application for judicial review, upholding the Registrar's decision to refuse the registration of the company name "Aus-China Trade Pty Ltd."

Orders