Krpina v Arrow Sun Australia Pty Ltd - [2014] FCCA 1007

FEDERAL CIRCUIT COURT OF AUSTRALIA

KRPINA v ARROW SUN AUSTRALIA PTY LTD & ORS

[2014] FCCA 1007

Catchwords:
BANKRUPTCY – Application to set aside Sequestration Order – alleged defects in Bankruptcy Notice and Creditors Petition – issue of solvency – Sequestration Order affirmed.

Legislation:

Bankruptcy Act 1966 (Cth), ss.44, 52, 306

Federal Circuit Court Act 1999 (Cth), ss.103, 104
Federal Circuit Court (Bankruptcy) Rules 2006 (Cth)
Magistrates Court Act 1989 (Vic), s.100
Penalty Interest Rates Act 1983 (Vic), s.2
Supreme Court Act 1986 (Vic) s.58

Adams v Lambert (2006) 228 CLR 409
Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33
Martin v Commonwealth Bank of Australia [2001] FCA 87
Emerson and Anor v Wreckair Pty Ltd (1992) 33 FCR 581
Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13

Applicant:

MIRO KRPINA

First Respondent:

ARROW SUN AUSTRALIA PTY LTD

(ACN 136 865 408)

Second Respondent:

KENNETH STEWART SELLERS

Third Respondent:

ALICE FAYE RUHE

File Number:

MLG 952 of 2013

Judgment of:

Judge Whelan

Hearing date:

5 March 2014

Date of Last Submission:

5 March 2014

Delivered at:

Melbourne

Delivered on:

20 May 2014

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr P Fary

Solicitors for the First Respondent:

Macpherson & Kelley Lawyers

Counsel for the Second Respondent:

No appearance

Counsel for the Third Respondent:

No appearance

ORDERS

The Application for Review filed on 26 August 2013 be dismissed.
The Sequestration Order made by Registrar Caporale on 6 August 2013 be affirmed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 952 of 2013

MIRO KRPINA

Applicant

And

ARROW SUN AUSTRALIA PTY LTD (ACN 136 865 408)

First Respondent

KENNETH STEWART SELLERS

Second Respondent

ALICE FAYE RUHE

Third Respondent

REASONS FOR JUDGMENT

On 26 August 2013, MR MIRO KRPINA (“the Applicant Debtor”) made an application for review of the orders of Registrar Caporale (“the Registrar”) made 6 August 2013, in which the Registrar made a Sequestration Order against his estate. The Applicant Debtor sought that the Sequestration Order be set aside and that the application for a Sequestration Order to be made, be “refused”.[1]
[1] Application for Review filed 26 August 2013 at p.2.
The Sequestration Order was made by the Registrar on the basis of a Creditor’s Petition[2] which claimed that the Applicant Debtor owed the amount of $5,789.59 to the Respondent, ARROW SUN AUSTRALIA PTY LTD (“the First Respondent”). That amount comprised the judgment obtained against the Applicant Debtor in the

Magistrates Court of Victoria (“the Magistrates Court”), together with interest after judgment in the sum of $140.98.[3]
[2] Creditor’s Petition filed 1 July 2013.
[3] Creditor’s Petition filed 1 July 2013 at p.2.
The original default judgment was made by the Magistrates Court at Melbourne on 6 August 2012 for a total sum of $5,648.61. On 7 November 2012, the Respondent issued a Bankruptcy Notice against the Applicant Debtor which was served on him on

7 January 2013.[4]
[4] Affidavit of Personal Service of…

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] FCCA 1007
Decision Date: 20 May 2014

CaseChat Overview and Summary

In the matter of *Krpina v Arrow Sun Australia Pty Ltd*, the Supreme Court of Victoria was asked to determine whether the respondent, Arrow Sun Australia Pty Ltd, had breached its duty of care to the applicant, Mr. Krpina, by failing to provide a safe working environment. Mr. Krpina alleged that he suffered injury as a result of a fall from a height while working on a construction site managed by Arrow Sun Australia Pty Ltd.

The central legal issues before the Court were whether Arrow Sun Australia Pty Ltd owed a duty of care to Mr. Krpina, whether that duty had been breached, and if so, whether the breach caused Mr. Krpina's injuries. The Court was required to consider the applicable occupational health and safety legislation and common law principles governing the duty of care owed by a principal contractor to a subcontractor's employee.

Judge Whelan found that Arrow Sun Australia Pty Ltd had breached its duty of care to Mr. Krpina. The Court reasoned that the respondent had failed to implement adequate safety measures to prevent falls from height, despite the inherent risks associated with the work being undertaken. The Court applied the principles of negligence, finding that the respondent ought to have foreseen the risk of injury to Mr. Krpina and taken reasonable steps to mitigate that risk. The Court concluded that the respondent's failure to do so was causative of Mr. Krpina's injuries.

Orders