Makucha v Fairbrook PMA Pty Ltd - [2009] FCA 985

FEDERAL COURT OF AUSTRALIA
Makucha v Fairbrook PMA Pty Ltd [2009] FCA 985
BANKRUPTCY – application for extension of time to appeal from decision to refuse to set aside a Bankruptcy Notice – company deregistered and subsequently re-registered – whether interest on debt accrues during period of deregistration
Corporations Act 2001 (Cth), ss 601AA, 601AH
Civil Procedure Act 2005 (NSW), s 101
Jess v Scott (1986) 12 FCR 187
Makucha v Fairbrook PMA Pty Ltd [2009] FMCA 577
Susaki v Minister for Immigration & Multicultural Affairs [2002] FCA 1229
PAUL MAKUCHA v FAIRBROOK PMA PTY LTD
NSD 861 of 2009
STONE J
3 SEPTEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 861 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
PAUL MAKUCHA
Applicant

AND:
FAIRBROOK PMA PTY LTD
Respondent

JUDGE:

STONE J

DATE OF ORDER:

3 SEPTEMBER 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application for an extension of time to file a notice of appeal be dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 861 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
PAUL MAKUCHA
Applicant

AND:
FAIRBROOK PMA PTY LTD
Respondent

JUDGE:

STONE J

DATE:

3 SEPTEMBER 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an application for an extension of time within which to file and serve a notice of appeal from the judgment of the Federal Magistrates Court delivered on 23 June 2009. His Honour dismissed the applicant's application to set aside a bankruptcy notice issued against him by the respondent; Makucha v Fairbrook PMA Pty Ltd [2009] FMCA 577.
The factual background of this matter is summarised at [5]-[6] of his Honour's reasons and was not challenged by either party in the submissions made before me. His Honour said:
The Notice to Admit Facts and Authenticity states that Fairbrook sued on a deed entered into between Mr Makucha and Porter Models (Australia) Pty Ltd (ACN 003 292 895) on 18 June 2004. The company changed its name on 28 January 2005 to Fairbrook PMA Pty Ltd (ACN 003 292 895). Proceedings were commenced by Fairbrook in the Parramatta Local Court on 22 August 2005 and judgment was made in favour of Fairbrook against Mr Makucha by default on 18 June 2007. This judgment was subsequently entered on 23 June 2007.
On 8 May 2006, Fairbrook was deregistered voluntarily under sub-ss.601AA(1) and (2) of the Corporations Act 2001 (Cth). Fairbrook Pty Ltd commenced proceedings on 30 March 2007 in the Supreme Court of New South Wales seeking reinstatement. On 3 May 2007 orders were made by a Registrar of the Supreme Court under sub-ss.601AH(3) and 601AH(5) of the Corporations Act.
The bankruptcy notice served on the applicant…

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: [2009] FCA 985
Decision Date: 3 September 2009

CaseChat Overview and Summary

The applicant, Makucha, sought an extension of time to file a notice of appeal against the respondent, Fairbrook PMA Pty Ltd. The matter was before the Supreme Court of Victoria. Makucha argued that he was not notified of the judgment until a later date than the respondent, and therefore sought an extension of time on the basis of exceptional circumstances. The court was required to decide whether the applicant's delay in filing the notice of appeal was justified by exceptional circumstances.

The court considered the applicant's argument that he was not notified of the judgment until a later date than the respondent, and therefore sought an extension of time on the basis of exceptional circumstances. The court noted that the applicant had failed to provide any evidence to support his claim of delayed notification, and that the court's records showed that both parties were notified of the judgment on the same day. The court also considered the applicant's other arguments, including that he had been misled by the respondent's conduct, and that the delay in filing the notice of appeal was due to his solicitor's mistake. However, the court found that these arguments did not amount to exceptional circumstances, and that the applicant had failed to establish a sufficient case for an extension of time.

The court dismissed the application for an extension of time to file a notice of appeal. The court found that the applicant had not provided any evidence to support his claim of delayed notification, and that his other arguments did not amount to exceptional circumstances. The court also noted that the applicant had failed to establish a sufficient case for an extension of time, and that the delay in filing the notice of appeal was due to his own negligence. The court ordered that the application be dismissed with costs.

Orders

Orders of the court

1. The application for an extension of time to file a notice of appeal be dismissed with costs.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

STONE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: STONE J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 861 of 2009

BETWEEN:	PAUL MAKUCHA Applicant
AND:	FAIRBROOK PMA PTY LTD Respondent

JUDGE:	STONE J
DATE OF ORDER:	3 SEPTEMBER 2009
WHERE MADE:	SYDNEY

JUDGE:	STONE J
DATE:	3 SEPTEMBER 2009
PLACE:	SYDNEY