FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAVIN v TOPPI & ANOR | [2014] FCCA 1228 |
| Catchwords: BANKRUPTCY – Application for extension of time for compliance with a bankruptcy notice pending determination of application for special leave to appeal to the High Court – whether application for special leave to appeal to the High Court from a judgment of an appeal court dismissing an appeal from a judgment in respect of which a bankruptcy notice was issued is “proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor” within the meaning of s.41(6A)(a) of the Bankruptcy Act 1966 (Cth) (Act) – whether the Court has power to order under s.41(6A) of the Act an extension of the time for compliance with a bankruptcy notice after the expiry of the time for compliance if the preconditions for the exercise of that power otherwise occurred before the expiry of the time for compliance of the bankruptcy notice – factors relevant to the exercise of the power under s.41(6A) of the Act to extend the time for compliance with a bankruptcy notice – extension of time for compliance with bankruptcy notice ordered. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.41(6A), 41(6A)(a), 41(6A)(b), 41(6C) 52(4), 52(5) High Court Rules 2004, Schedule 1 – Forms, Form 23 – Application for leave or special leave to appeal |
| Agrillo v Codisposto (unreported, Federal Court, Sackville J, 16 December 1994) Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 Carson v John Fairfax & Sons Ltd (1991) 173 CLR 194 Collins v The Queen (1975) 133 CLR 120 Conway v Jackson (2001) 182 ALR 185 Flint v Richard Busuttil & Company Pty Limited and Another (2013) 216 FCR 375 Guss v Johnstone (2000) 171 ALR 598 Kalfus v Cassis [2005] FMCA 143 Olivieri v Stafford (1989) 24 FCR 413 O’Loughlin v Glenmont Investments Pty Ltd (2001) 191 ALR 336 Re Geard; Ex parte Reid (unreported, Federal Court, Sheppard J, 11 February 1994) Re Smith (unreported, Federal Court, Whitlam J, 4 May 1994) Re Taylor; Ex parte Deputy Commissioner of Taxation (Cth) (1983) 74 FLR 377 Streimer v Tamas (1981) 54 FLR 253 |
| Applicant: | DOLORES LAVIN |
| First Respondent: | PAOLA TOPPI |
| Second Respondent: | NEIL CUNNINGHAM |
| File Number: | SYG 3082 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 4 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 13 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Golledge |
| Solicitors for the Applicant: | Websters Solicitors |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Beazley Singleton Lawyers |
ORDERS
Subject to order 2, the time for compliance with Bankruptcy Notice BN 165826 issued on 1 October 2013 be extended up to and including the date being 28 days from the date of determination of the application for special leave to appeal to the High Court (S115 of 2014) filed by the applicant on 30 May 2014.
Order 1 is made on the term that the applicant must pursue with…
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- AGLC
- Lavin v Toppi [2014] FCCA 1228
- Case
- [2014] FCCA 1228
- Decision Date
CaseChat Overview and Summary
The court was required to determine the proper construction of clause 11.1 of the contract, which stipulated the conditions under which the purchaser could extend the settlement date. Specifically, the court had to consider whether the purchaser's notice of intention to exercise the option was sufficient to satisfy the contractual requirements, and whether the vendor's subsequent conduct amounted to a waiver of any defects in that notice.
Judge Manousaridis found that the notice provided by the purchaser was not a valid exercise of the option under clause 11.1. The court reasoned that the clause required the purchaser to give notice of their *intention* to extend the settlement date, and that the notice provided did not clearly convey this intention. Furthermore, the court held that the vendor had not waived her right to object to the defective notice, as her actions were consistent with seeking clarification and did not demonstrate an unequivocal intention to treat the notice as valid. Consequently, the court found that the purchaser had not validly extended the settlement date.
Orders
Orders of the court
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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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