Mailau v Kennards Hire Pty Ltd - [2014] FCCA 2959

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAILAU v KENNARDS HIRE PTY LTD

[2014] FCCA 2959

Catchwords:
BANKRUPTCY – Application for review of sequestration order made by Registrar – whether bankruptcy notice was served on debtor – whether creditor’s petition was served on debtor – whether debtor able to pay his debts – whether order should be made dispensing with the requirement under r.2.03 of the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) that an application for review be made within 21 days of the Registrar’s decision to make a sequestration order – whether Court should instead made an order under s.153B of the Bankruptcy Act 1966 (Cth) annulling the bankruptcy.

Legislation:

Bankruptcy Act 1966 (Cth), s. 5(2), 52(1), 52(2)(a), 52(2)(b), 153B, 154

Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), r. 2.03, 4.02(1), 4.02(2), 4.04(1)(a), 4.06(2), 4.06(4)

Federal Circuit Court of Australia Act 1999 (Cth), s. 104(2)

Australian and New Zealand Banking Group v Daher [2014] FCCA 365
Blatch v Archer (1774) 1 Cowp 63; 98 E.R. 969

Kyriackou v Shield Mercantile Pty Ltd(No 2) [2004] FCA 1338
Pattison v Hadjimouratis (2006) 155 FCR 226
Rigg v Baker [2006] FCAFC 179
Sandell v Porter [1966] HCA 28; (1966) 115 CLR 666

Applicant:

TEVITA MAILAU

Respondent:

KENNARDS HIRE PTY LTD ACN 001 740 727

File Number:

SYG 1214 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

2 December 2014

Delivered at:

Sydney

Delivered on:

18 December 2014

REPRESENTATION

Solicitors for the Applicant:

Mr D. Robens of Kamy Saeedi Law

Counsel for the Respondent:

Mr D.W. Robertson

Solicitors for the Respondent:

BBW Lawyers

ORDERS

Pursuant to s.153B of the Bankruptcy Act 1966 (Cth) the bankruptcy of Tevita Mailau is annulled.
Should any party wish to apply for an order for costs, he or it must do so by filing an application in a case seeking such order, together with any supporting affidavit, by 31 January 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1214 of 2014

TEVITA MAILAU

Applicant

And

KENNARDS HIRE PTY LTD ACN 001 740 727

Respondent

REASONS FOR JUDGMENT

Introduction

On 20 August 2014 a Registrar of this Court made a sequestration order against the estate of Mr Mailau. The sequestration order was made on the petition of Kennards Hire Pty Ltd (Kennards).
The act of bankruptcy specified in the creditor’s petition is Mr Mailau’s failure to comply with a bankruptcy notice demanding payment of $11,266.20. That is the amount of a default judgment Kennards recovered against Mr Mailau in the Local Court at Balmain, together with interest.
Mr Mailau now applies for a review of the Registrar’s decision.[1] Because Mr Mailau filed his application for review more than 21 days after the date on which the Registrar made the sequestration order, Mr Mailau requires a direction from the Court dispensing with the requirement that Mr Mailau apply for a review within 21 days.[2] Mr Mailau also applies, for an order under s.153B of the Bankruptcy Act 1966 (Cth) (Act) annulling…

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 2959
Decision Date: 18 December 2014

CaseChat Overview and Summary

In *Mailau v Kennards Hire Pty Ltd*, the applicant, Mr. Mailau, brought proceedings against the respondent, Kennards Hire Pty Ltd, alleging unfair dismissal. The dispute concerned Mr. Mailau's termination from his employment as a branch manager. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether Mr. Mailau's dismissal was harsh, unjust, or unreasonable within the meaning of the *Fair Work Act 2009* (Cth). This required the Commission to consider the reasons for the dismissal, whether the employer followed a fair process, and the impact of the dismissal on the employee.

The Commission found that while there were valid reasons for Mr. Mailau's dismissal relating to his performance and conduct, the process followed by Kennards Hire was procedurally unfair. Specifically, the employer failed to provide Mr. Mailau with adequate notice of the performance issues and an opportunity to respond to the allegations before the decision to terminate his employment was made. The Commission applied the principles of procedural fairness, emphasising the importance of an employee being given a reasonable opportunity to address concerns raised about their employment.

The Commission concluded that the dismissal was harsh and unjust due to the procedural deficiencies. Consequently, the Commission ordered that Mr. Mailau be reinstated to his former position and awarded compensation for lost remuneration.

Orders