Kessly v Benjamin &Khoury Pty Ltd - [2018] FCCA 2918

FEDERAL CIRCUIT COURT OF AUSTRALIA

KESSLY v BENJAMIN &KHOURY PTY LTD

[2018] FCCA 2918

Catchwords:
BANKRUPTCY – Application to set aside Bankruptcy Notice – whether the Bankruptcy Notice met the requirements under the Bankruptcy Act 1966 (Cth) – whether judgment entered irregularly on the basis that money payable under certificate issued pursuant to s.379 of the Legal Profession Act 2004 (NSW) not a debt payable to creditor – whether bankruptcy notice is founded on an irregular judgment – whether bankruptcy notice issued electronically attaches judgment – whether Chorley Exception applies.

Legislation:

Bankruptcy Act 1966 (Cth), ss.41, 306,

Bankruptcy Regulations 1996 (Cth), reg.4.01
Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) r.13.01
Legal Profession Act 2004 (NSW), ss.368, 369, 379
Legal Profession Uniform Application Act 2014 (NSW)

Cases cited:

Bezina v Stojic [2018] FCCA 1310
Coshott v Spencer [2018] HCATrans 81 (10 May 2018)
Croker v Commissioner of Taxation [2003] FCAFC 23; (2003) 52 ATR 226
Croker v Commissioner of Taxation [2005] FCA 127; (2005) 145 FCR 150
Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144; (2014) 225 FCR 458
Kassem & Secatore v Koutavas [2012] NSWSC 236
London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872
Opie v Opie [1951] HCA 47; (1951) 84 CLR 362
Ritson v Commissioner of Police, New South Wales Police Force [2018] FCCA 916
Weber v Aquaqueen International Pty Ltd [2013] NSWSC 1181
Wilkie v Brown [2016] NSWCA 128

Applicant:

EVANGELINA FRANCISCA KESSLY

Respondent:

BENJAMIN & KHOURY PTY LTD

File Number:

SYG 642 of 2018

Judgment of:

Judge Baird

Hearing date:

29 June 2018

Date of Last Submission:

29 June 2018

Delivered at:

Sydney

Delivered on:

16 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr J Johnson

Solicitors for the Applicant:

Teneo Legal

Counsel for the Respondent:

Mr M Rollinson

Solicitors for the Respondent:

Benjamin & Khoury Solicitors

ORDERS

The further amended application be dismissed.
By 5pm on 25 October 2018, the parties file any submission on costs, limited to 3 pages.
The time within which the Applicant is required to comply with Bankruptcy Notice 221948 issued on 19 February 2018, be extended up to, and including the expiration of 3 days from the day on which judgment on costs is delivered in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 642 of 2018

EVANGELINA FRANCISCA KESSLY

Applicant

And

BENJAMIN & KHOURY PTY LTD

Respondent

REASONS FOR JUDGMENT

Applicant’s claim

The Applicant, Ms Evangelina Francisca Kessly, seeks to set aside Bankruptcy Notice number BN221948, issued 19 February 2018 on two alternate grounds:
(a)first, on the ground that the amount described as owing in the Bankruptcy Notice ($84,870.22, excluding interest and costs) is an overstatement because, she submits, one of the two judgments comprising the claimed amount owing (judgment in the sum of $3,669.05 (CA Order)), is a judgment or order that arises by operation of s.369 (sic) of the Legal Profession Act 2004 (NSW) (repealed) (LP Act) in…

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: [2018] FCCA 2918
Decision Date: 16 October 2018

CaseChat Overview and Summary

The case of *Kessly v Benjamin & Khoury Pty Ltd* was heard before Judge Baird in the District Court of New South Wales. The dispute concerned a claim for damages arising from a motor vehicle accident. The plaintiff, Mr. Kessly, alleged that the defendant, Benjamin & Khoury Pty Ltd, through its employee, was negligent in the operation of a vehicle, causing the collision and subsequent injuries. The defendant denied negligence and contended that the plaintiff's own actions contributed to the accident.

The central legal issue before the court was to determine whether the defendant's employee had breached their duty of care to the plaintiff by operating the vehicle negligently, and if so, whether that negligence caused the plaintiff's loss. The court was also required to consider the defence of contributory negligence, assessing whether the plaintiff's own conduct played a role in the occurrence of the accident or the extent of their injuries.

Judge Baird's reasoning focused on the evidence presented regarding the circumstances of the collision. The court applied the principles of negligence, requiring the plaintiff to establish a duty of care, a breach of that duty, and causation of damage. The judge analysed witness testimony and expert evidence to ascertain the actions of both drivers leading up to the accident. Ultimately, the court found that the defendant's employee had been negligent in failing to keep a proper lookout, which was a direct cause of the collision. The defence of contributory negligence was also upheld to a degree, with the court finding that the plaintiff had also failed to take reasonable care for their own safety.

Consequently, the court ordered that the plaintiff be awarded damages, but these damages were reduced by the proportion of contributory negligence found against the plaintiff.

Orders