Linke v TT Builders Pty Ltd (No 2) - [2015] FCA 704

FEDERAL COURT OF AUSTRALIA
Linke v TT Builders Pty Ltd (No 2) [2015] FCA 704

Citation: Linke v TT Builders Pty Ltd (No 2) [2015] FCA 704

Parties: TOBIN JAMES LINKE v TT BUILDERS PTY LTD (ACN 120 541 424), ANTONIO MAURIZIO TESSITORE and HARRIS REAL ESTATE PTY LTD (ACN 140 836 997)

File number: SAD 56 of 2014

Judge: WHITE J

Date of judgment: 8 July 2015

Catchwords: COSTS – enforcement of costs order – application under rr 41.01 and 41.10 of the Federal Court Rules 2011 (Cth) and Enforcement of Judgments Act 1991 (SA) – evidence that respondent disposing of assets – whether real property owned by respondent should be charged with judgment debt

Legislation: Enforcement of Judgments Act 1991 (SA) ss 3, 8
Federal Court of Australia Act 1976 (Cth) s 53
Federal Court Rules 2011 (Cth) rr 17.03, 39.06,40.32(2), 41.01, 41.10

Cases cited: Guthrie v Robertson (1987) 13 FCR 336
Linke v TT Builders Pty Ltd [2014] FCA 672

Date of hearing: 8 July 2015

Place: Adelaide

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 12

Counsel for the Applicant: Ms G Walker

Solicitor for the Applicant: Fenwick Elliott Grace

Counsel for the Respondents: The Respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 56 of 2014

BETWEEN:
TOBIN JAMES LINKE
Applicant

AND:
TT BUILDERS PTY LTD (ACN 120 541 424)
First Respondent

ANTONIO MAURIZIO TESSITORE
Second Respondent

HARRIS REAL ESTATE PTY LTD (ACN 140 836 997)
Third Respondent

JUDGE:

WHITE J

DATE OF ORDER:

8 JULY 2015

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.Pursuant to rr 41.01 and 41.10 of the Federal Court Rules and s 8(1) of the Enforcement of Judgments Act 1991 (SA), until further order the Second Respondent’s property, namely:
(a)The whole of the land in Certificate of Title Volume 6109 Folio 395 situated at Lot 2 Archibald Street, American River, South Australia; and
(b)The whole of the land in Certificate of Title Volume 6109 Folio 396 situated at Lot 50 Archibald Street, American River, South Australia, (collectively referred to as “the Properties”)

be charged with the judgment debt of $94,507.33 arising from the Certificate of Taxation issued 22 May 2015 in this proceeding, interest accruing thereon under r 39.06 of the Federal Court Rules 2011 (Cth), together with the costs and disbursements of and incidental to the interlocutory application filed on 2 July 2015 (“the Charged Debt”);
2.The charge referred to in Order 1 above remain in force until the earlier of:
(a)The Charged Debt is paid in full;
(b)This Order is discharged.

3.Pursuant to rr 41.01 and 41.10 of the Federal Court Rules and s 8(2) of the Enforcement of Judgments Act 1991 (SA), the charge referred to in Order 1 above be registered on the title of each of the Properties;
4.Pursuant to r 17.03 of the Federal Court Rules, the above Orders, the Applicant’s interlocutory application filed on 2 July 2015 and the affidavit of Samuel David Burford…

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: [2015] FCA 704
Decision Date: 8 July 2015

CaseChat Overview and Summary

In the matter of Linke v TT Builders Pty Ltd (No 2), the applicant sought an order that specific properties owned by the respondent be charged with a judgment debt. The Federal Court was required to determine whether evidence of asset disposal by the respondent justified the enforcement of the judgment debt against the properties in question. The applicant argued that the respondent had engaged in asset disposal to avoid satisfying the judgment debt, warranting the enforcement action against the specified properties.

The court examined the provisions under the Federal Court Rules 2011 (Cth) and the Enforcement of Judgments Act 1991 (SA) to assess the legitimacy of charging the respondent's properties with the judgment debt. It considered the nature and extent of the evidence provided regarding the respondent's asset disposal activities and evaluated whether these actions constituted an attempt to defraud creditors. The court found sufficient evidence to justify the enforcement action, concluding that the respondent's actions warranted the protection of the applicant's judgment debt by charging the specified properties.

Consequently, the court made several orders to enforce the judgment debt against the respondent's properties, including charging the properties with the judgment debt, interest, and costs, and specifying methods for serving these orders on the respondent. The court also provided for the registration of the charge on the title of the properties and outlined the procedures for serving the orders. The matter was adjourned for further directions, and costs were reserved pending further instructions.

Orders

Orders of the court

1. Pursuant to rr 41.01 and 41.10 of the Federal Court Rules and s 8(1) of the Enforcement of Judgments Act 1991 (SA), until further order the Second Respondent’s property, namely:

(a) The whole of the land in Certificate of Title Volume 6109 Folio 395 situated at Lot 2 Archibald Street, American River, South Australia; and

(b) The whole of the land in Certificate of Title Volume 6109 Folio 396 situated at Lot 50 Archibald Street, American River, South Australia, (collectively referred to as “the Properties”)

be charged with the judgment debt of $94,507.33 arising from the Certificate of Taxation issued 22 May 2015 in this proceeding, interest accruing thereon under r 39.06 of the Federal Court Rules 2011 (Cth), together with the costs and disbursements of and incidental to the interlocutory application filed on 2 July 2015 (“the Charged Debt”);

2. The charge referred to in Order 1 above remain in force until the earlier of:

(a) The Charged Debt is paid in full;

(b) This Order is discharged.

3. Pursuant to rr 41.01 and 41.10 of the Federal Court Rules and s 8(2) of the Enforcement of Judgments Act 1991 (SA), the charge referred to in Order 1 above be registered on the title of each of the Properties;

4. Pursuant to r 17.03 of the Federal Court Rules, the above Orders, the Applicant’s interlocutory application filed on 2 July 2015 and the affidavit of Samuel David Burford made 2 July 2015 be served:

(a) on the First Respondent by delivering them by prepaid courier with proof of delivery to its registered office address;

(b) on the Second Respondent by the following methods of service:

(i) transmission by text message to +679 979 6013;

(ii) transmission by email addressed to the Second Respondent at sales@futureinbuilding.com;

(iii) delivery by prepaid courier with proof of delivery addressed to the Second Respondent to PO Box 728, Blackwood SA 5051;

(iv) delivery by prepaid courier addressed to the Second Respondent with proof of delivery to each of 42A Burnell Drive, Belair SA 5052 and 18 Devonshire Road, Hawthorndene SA 5051; and

(v) by personal service on Armando Tessitore, addressed to the Second Respondent’s attention.

5. Service in accordance with order 4(b) above will be good and sufficient service of the above Orders, the Applicant’s interlocutory application filed on 2 July 2015 and Mr Burford’s affidavit.

6. Costs be reserved.

7. The matter be adjourned for further directions at 9.00am on Friday 24 July 2015.

8. There be liberty to apply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

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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Citation:	Linke v TT Builders Pty Ltd (No 2) [2015] FCA 704
Parties:	TOBIN JAMES LINKE v TT BUILDERS PTY LTD (ACN 120 541 424), ANTONIO MAURIZIO TESSITORE and HARRIS REAL ESTATE PTY LTD (ACN 140 836 997)
File number:	SAD 56 of 2014
Judge:	WHITE J
Date of judgment:	8 July 2015
Catchwords:	COSTS – enforcement of costs order – application under rr 41.01 and 41.10 of the Federal Court Rules 2011 (Cth) and Enforcement of Judgments Act 1991 (SA) – evidence that respondent disposing of assets – whether real property owned by respondent should be charged with judgment debt
Legislation:	Enforcement of Judgments Act 1991 (SA) ss 3, 8 Federal Court of Australia Act 1976 (Cth) s 53 Federal Court Rules 2011 (Cth) rr 17.03, 39.06,40.32(2), 41.01, 41.10
Cases cited:	Guthrie v Robertson (1987) 13 FCR 336 Linke v TT Builders Pty Ltd [2014] FCA 672
Date of hearing:	8 July 2015
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	12
Counsel for the Applicant:	Ms G Walker
Solicitor for the Applicant:	Fenwick Elliott Grace
Counsel for the Respondents:	The Respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 56 of 2014

JUDGE:	WHITE J
DATE OF ORDER:	8 JULY 2015
WHERE MADE:	ADELAIDE