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 |
| Cases cited: Bezina v Stojic [2018] FCCA 1310 |
| 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(CA Order)), is a judgment or order that arises by operation of s.369 (sic) of the Legal Profession Act 2004 (NSW) (repealed) (LP Act) in…
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- Case
- [2018] FCCA 2918
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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