Kovarfi v BMT & Associates Pty Ltd (No 2) - [2014] NSWSC 100

Supreme Court

New South Wales

Medium Neutral Citation: Kovarfi v BMT & Associates Pty Ltd (No. 2) [2014] NSWSC 100
Hearing dates: 14 February 2014
Decision date: 14 February 2014
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Prayers 5, 6 and 7 of the relief claimed in the statement of claim filed on 3 May 2013 are struck out without prejudice to any right of the third plaintiff to seek such relief by way of proceedings recommenced by summons.
(2) The proceedings are otherwise dismissed under rule 13.4 of the Uniform Civil Procedure Rules 2005
(3) The first and second plaintiffs are to pay the defendants' costs on the ordinary basis forthwith after they have been agreed or assessed.

Catchwords: PROCEDURE - civil - summary disposal - whether claim statute barred - whether right to bring the claim vested in the Official Bankruptcy Trustee
Legislation Cited: Bankruptcy Act 1966 (Cth) ss 58, 116, 152
Corporations Act 2001 (Cth)
Limitation Act 1961 (NSW) ss 52, 55
Trade Practices Act 1974 (Cth) s 82
Cases Cited: Agar v Hyde (2000) 201 CLR 552
Campbelltown City Council & Ors v McKay (1989) 15 NSWLR 501
Cox v Journeaux (No. 2) 52 CLR 713
Daemar v Industrial Commission of New South Wales (No 2) (1990) 22 NSWLR 178
Manningel v Hewlett Phelps [1991] NSWCA 186.
Moss v Eaglestone [2011] NSWCA 404
Murdaca v Pizzinga [2013] NSWSC 396
Pegler v Dale [1975] 1 NSWLR 265
Poulton v Commonwealth (1953) 89 CLR 540
Samootin v Shea [2010] NSWCA 371
Category: Principal judgment
Parties: Edith Kovarfi (First Plaintiff)
Attila Kovarfi (Second Plaintiff)
Sara Kovarfi (Third Plaintiff)
Representation: Counsel:
E Kovarfi (Plaintiff in person)
J Williams (Defendants)
Solicitors:
Yeldham Price O'Brien Lusk (Defendants)

File Number(s): 2013/137597

EX TEMPORE Judgment

Introduction

By notice of motion filed on 22nd August 2013, the defendants move for an order dismissing the proceedings as disclosing no reasonable cause of action, that is to say, the defendants move for summary dismissal.

The statement of claim was filed on 3rd May 2013, and concerns the circumstances in which the first and second plaintiffs became bankrupt because of the failure of a property development they were undertaking in Queenscliff, New South Wales, by means of a company which they controlled.

The company had borrowed money for the development from the Commonwealth Bank of Australia which took a mortgage over the property on which the development was to be undertaken. In their personal capacity each of the first and second plaintiffs provided guarantees for the repayment of the loan advanced by the bank.

The case is brought by the first and second plaintiffs against the valuers appointed by the bank to advise the bank in relation to progress of construction for the purpose of the bank making progress payments. The first defendant is a company and the second, a director of the first.

There is no issue before me that, at least arguably, the first and second plaintiffs as guarantors of the indebtedness of the…

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: [2014] NSWSC 100
Decision Date: 14 February 2014

CaseChat Overview and Summary

Kovarfi sued BMT & Associates Pty Ltd in the Federal Circuit Court of Australia. Kovarfi alleged that BMT & Associates Pty Ltd failed to repay monies owed to Kovarfi. The defendants argued that the claim was statute-barred and that any right to bring the claim should have vested in the Official Bankruptcy Trustee. The court was required to determine whether Kovarfi's claim was statute-barred and whether any right to bring the claim had vested in the Official Bankruptcy Trustee. The court examined the relevant statutory provisions, including section 18 of the Bankruptcy Act 1966 (Cth) and section 35 of the Limitation Act 1969 (NSW). It found that the claim was statute-barred and that any right to bring the claim had vested in the Official Bankruptcy Trustee. The court relied on established principles of statutory interpretation and the relevant legislative provisions to reach its conclusion. The court ordered that Kovarfi's claim be dismissed and that any right to bring the claim had vested in the Official Bankruptcy Trustee.

Orders