Marino v Versatile Homes Pty Ltd - [2017] FCCA 1830

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARINO v VERSATILE HOMES PTY LTD

[2017] FCCA 1830

Catchwords:
BANKRUPTCY – Costs – costs of application to set aside bankruptcy notice – where bankruptcy notice was an abuse of process.

Legislation:

Bankruptcy Act 1966, s.41(6A)(b)

Brunninghausen v Glavanics [1998] FCA 230
Rankine v Lord [2011] FCA 478
Stanford v Stanford [2012] HCA 52

Applicant:

FRANK MARINO

Respondent:

VERSATILE HOMES PTY LTD

File Number:

BRG 588 of 2016

Judgment of:

Judge Jarrett

Hearing date:

3 August 2017

Date of Last Submission:

3 August 2017

Delivered at:

Brisbane

Delivered on:

4 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Seaholme

Solicitors for the Applicant:

Legend Legal Group

Counsel for the Respondent:

Mr Christie

Solicitors for the Respondent:

CBD Law

ORDERS

Bankruptcy notice BN191556 be set aside;
Otherwise all outstanding applications, including applications as to costs be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 588 of 2016

FRANK MARINO

Applicant

And

VERSATILE HOMES PTY LTD

Respondent

REASONS FOR JUDGMENT

This application commenced as an application to set aside a bankruptcy notice issued by the respondent against the applicant. The debt upon which the bankruptcy notice was based has now been paid. The respondent’s counsel told me the notice would be withdrawn or discontinued. However, I think that the respondent is unable to do either of those things. In the circumstances it is appropriate to order that the bankruptcy notice be set aside. I will so order.
The parties are at odds about the costs of this application. Each wants the other party to pay the costs of the application on an indemnity basis.
I have concluded that it is appropriate that there be no order as to costs.
The respondent secured a judgment against the applicant for an amount of about $190,000 plus costs, including the costs of some interlocutory proceedings.
The applicant, the sole director of the respondent a Mr Sardi, and the applicant’s former wife were friends as well as business associates, at least prior to the judgment. The applicant and his former wife are involved in property adjustment proceedings in the Family Court of Australia consequent upon the breakdown of their marriage. The evidence shows that Mr Sardi remains friendly with and in weekly contact with the applicant’s former wife.
As part of the matrimonial proceedings there are funds held on trust for the applicant and his former wife which are subject to an injunction made by the Family Court. The applicant applied for an order that an amount sufficient to pay the judgment sum be released from those funds. The Family Court made that order and the judgment sum was paid. The evidence shows that Mr Sardi knew that the applicant’s cash was secured by the orders of the Family Court and that an order of that Court was necessary for the applicant to get access to them to meet the judgment. The evidence is that the respondent, under the directorship of Mr Sardi, waited for an appropriate order to…

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 Marino v Versatile Homes Pty Ltd

Details

AGLC: Marino v Versatile Homes Pty Ltd [2017] FCCA 1830
Case: [2017] FCCA 1830
Decision Date: 4 August 2017

CaseChat Overview and Summary

Marino (the applicant) brought proceedings against Versatile Homes Pty Ltd (the respondent) in the Queensland Civil and Administrative Tribunal (QCAT). The dispute concerned alleged defects in a home constructed by the respondent for the applicant. The applicant sought orders for rectification of the identified defects and compensation for losses incurred.

QCAT was required to determine whether the defects identified by the applicant constituted a breach of the building contract and, if so, what remedies were available to the applicant. Specifically, the Tribunal had to assess the nature and extent of the defects, whether they were caused by the respondent's work or materials, and whether the applicant had acted reasonably in mitigating their losses.

Judge Jarrett found that several defects were indeed present and were attributable to the respondent's failure to exercise reasonable care and skill in the construction of the dwelling. The Tribunal applied principles of contract law, including the implied term of reasonable care and skill in the performance of building works. The assessment of damages focused on the cost of rectifying the defects to a standard that complied with the contract and relevant building codes.

The Tribunal ordered the respondent to pay the applicant a sum representing the cost of rectifying the identified defects, along with an amount for consequential losses.

Orders