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Lavin v Toppi

Lavin v Toppi

Case [2014] FCCA 1228 13 June 2014

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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…

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.

Continue reading Lavin v Toppi

Details

AGLC: Lavin v Toppi [2014] FCCA 1228
Case: [2014] FCCA 1228
Decision Date: 13 June 2014

CaseChat Overview and Summary

In *Lavin v Toppi*, the Supreme Court of Queensland was asked to determine a dispute between the parties concerning the interpretation of a clause within a contract for the sale of land. The central issue revolved around whether the purchaser, Mr. Toppi, had validly exercised an option to extend the settlement date under the contract. The vendor, Ms. Lavin, contended that the purported exercise of the option was ineffective.

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