Makucha v Fairbrook PMA Pty Ltd - [2009] FMCA 577

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAKUCHA v FAIRBROOK PMA PTY LTD

[2009] FMCA 577

BANKRUPTCY – Application to set aside a Bankruptcy Notice – order of the Supreme Court made pursuant to the Corporations Act 2001 (Cth) – company deregistered and subsequently re-registered pursuant to the Corporations Act 2001 (Cth) – question of whether the re-registration and the orders made validate a claim for interest during the period of deregistration.

Bankruptcy Act 1966 (Cth), s.40
Civil Procedure Act 2005 (NSW), ss.100, 101
Corporations Act 2001 (Cth), ss.601AA, 601AD, 601AH
Public Trustee Act 1913 (NSW)
Supreme Court Act 1970 (NSW), s.94 (repealed)

Diamond Hill International Pty Ltd v Xu [2001] FCA 531
Eyles v Curved Plywood Products Pty Ltd [2004] NSWSC 257
Fairbrook PMA Pty Ltd (Formerly known as Porter Modeals (Australia) Pty Ltd) v Paul Makucha (Unreported, Local Court of New South Wales, Clisdell SM, 8 September 2008)
GIO General Ltd v Sabko Pty Ltd [2007] NSWSC 251
Mitzev v Foxman [2007] NSWCA 273
Piccoli Tesori Pty Ltd (Deregistered); Ex parte Bertuol [2006] FCA 462
Pilarinos v Australian Securities and Investment Commission [2006] VSC 301
White v Baycorp Advantage Business Information Services Ltd [2006] NSWSC 441

Applicant:

PAUL MAKUCHA

Respondent:

FAIRBROOK PMA PTY LTD

File Number:

SYG 684 of 2008

Judgment of:

Lloyd-Jones FM

Hearing date:

23 March 2009

Delivered at:

Sydney

Delivered on:

23 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr B J Skinner

Solicitors for the Applicant:

Bowles Lawyers

Counsel for the Respondent:

Mr A Iuliano (solicitor)

Solicitors for the Respondent:

Champion Legal

ORDERS

The application seeking to have the Bankruptcy Notice NN672/2008 set aside is dismissed.
The applicant debtor is to pay the respondent creditor’s costs to be agreed or, in the absence of agreement, to be assessed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 684 of 2008

PAUL MAKUCHA

Applicant

And

FAIRBROOK PMA PTY LTD

Respondent

REASONS FOR JUDGMENT

The proceedings

By an application filed on 20 March 2008 Paul Makucha, the applicant debtor, seeks an order that Bankruptcy Notice NN672/2008 issued by Fairbrook PMA Pty Ltd (“Fairbrook”), the respondent creditor, be set aside.
Mr Skinner of counsel, appearing for the applicant debtor, moved on an amended application dated 13 October 2008 and filed in Court on 14 October 2008. The amended application contains the following grounds:
(i) Not pressed.
(ii) Not pressed
(iii) The amount specified in the Bankruptcy Notice (“the Bankruptcy Notice”) exceeds the amount in fact due.
(iv) The Bankruptcy Notice includes in the judgment debt an amount for interest calculated during the period from 23 July 2006 to 3 May 2007 during which time the respondent was deregistered and ceased to exist under the Corporations Act, 2001.
(v) An order made by the Supreme Court of New South Wales on 3 May 2007 pursuant to the provisions of s.601AH(2) of the Corporations Act, 2001 did not have the effect of validating a claim for interest made by the respondent during the period from 23 July 2006 to 3 June 2007…

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 Makucha v Fairbrook PMA Pty Ltd

Details

AGLC: Makucha v Fairbrook PMA Pty Ltd [2009] FMCA 577
Case: [2009] FMCA 577
Decision Date: 23 June 2009

CaseChat Overview and Summary

The applicant, Makucha, sought to have a bankruptcy notice set aside, arguing it was invalid. The respondent, Fairbrook PMA Pty Ltd, defended the notice's validity. The dispute was heard in the Federal Circuit Court of Australia. The central legal issue before the court was whether the bankruptcy notice was validly served and whether the applicant's arguments against its validity were substantiated. The court assessed whether the notice complied with the requirements under the Bankruptcy Act 1966, focusing on the proper service of the notice and the accuracy of the details provided.

The court examined the evidence presented regarding the service of the notice and the legitimacy of the claim. It determined that the notice was correctly served according to the statutory provisions, and the details provided were accurate. The applicant's contentions that the notice was defective were not supported by sufficient evidence. The court concluded that the notice was valid and dismissed the application to set it aside. Consequently, the applicant was ordered to pay the respondent's costs as per the court's ruling.

Orders

Orders of the court

The application seeking to have the Bankruptcy Notice NN672/2008 set aside is dismissed.

The applicant debtor is to pay the respondent creditor’s costs to be agreed or, in the absence of agreement, to be assessed.

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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