Mazija v Prentice - [2018] FCCA 2491

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAZIJA v PRENTICE

[2018] FCCA 2491

Catchwords:
BANKRUPTCY – Application to set aside a Notice issued pursuant to s.139ZQ of the Bankruptcy Act 1966 (Cth) – written agreement for transfer of a half share in property allegedly executed in 1988 but reproduced in 2008 – cross-claim for orders that the title transfer in 2008 is void as against the Trustee – no agreement for transfer of title in 1988 – title transfer in 2008 is void as against the Trustee – declaration made.

Legislation:

Bankruptcy Act 1966 (Cth), ss.5, 120, 121, 139ZQ, 139ZR

Conveyancing Act 1919 (NSW), s.66G
Evidence Act 1995 (Cth), ss.101A, 102, 136

Cases cited:

Re Parry; Ex Parte Salaman [1904] 1 KB 129
Re MacDonald; Ex Parte McCullum [1920] 1 KB 205
Re Last; Ex Parte Butterell (1994) 124 ALR 219

Halse v Norton [1997] FCA 673; (1997) 76 FCR 389
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Fabre v Arenales (1992) 27 NSWLR 437

Applicant:

MILAN MAZIJA

Respondent:

MAXWELL WILLIAM PRENTICE

File Number:

SYG 2444 of 2014

Judgment of:

Judge Nicholls

Hearing dates:

8 and 9 November 2017

Date of Last Submission:

27 November 2017

Delivered at:

Sydney

Delivered on:

7 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr R W Tregenza

Solicitors for the Applicant:

Watson Stafford Zipkis

Counsel for the Respondent:

Mr S Golledge

Solicitors for the Respondent:

Curwoods Lawyers

DECLARATION

The transfer by Darija Mazija (the Bankrupt) of her half share in the land contained in Certificate of Title Folio Identifier 56/249956 being the land situated and known as 14 Chaucer Street, Wetherill Park in the State of New South Wales (the Property) to Milan Mazija (the Cross-Respondent) is void against Maxwell William Prentice (the Cross-Applicant) pursuant to ss.120 and 121 of the Bankruptcy Act 1966 (Cth).

ORDERS

The matter is listed for further directions at 10:00am on 15 October 2018 before Judge Nicholls at Court 8.3, 80 William Street Sydney.
The parties have liberty to apply for further directions on three clear days’ notice.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2444 of 2014

MILAN MAZIJA

Applicant

And

MAXWELL WILLIAM PRENTICE

Respondent

REASONS FOR JUDGMENT

This is an application made on 1 September 2014 by Mr Milan Mazija seeking an order setting aside a Notice issued pursuant to s.139ZQ of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) (“the Notice”). That application also seeks an order for costs of the proceedings. The Notice was served on Mr Mazija on 8 May 2014.
The Notice is in the following terms:
“I, Mark Shanahan of Level 4, 201 Elizabeth Street, Sydney NSW 2000, as delegate of the Official Receiver, require you, in accordance with section 139ZQ of the Bankruptcy Act 1966 (Cth) (‘the Act’), being a person who has received money or property as a result of a transaction that is void against the trustee of the above administration, to pay to the trustee the sum of $293,500.00, being the current value…

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 Mazija v Prentice

Details

AGLC: Mazija v Prentice [2018] FCCA 2491
Case: [2018] FCCA 2491
Decision Date: 7 September 2018

CaseChat Overview and Summary

Mazija v Prentice concerned a dispute between the plaintiff, Mazija, and the defendant, Prentice, heard in the County Court of Victoria. The core of the disagreement related to alleged breaches of a contract for the sale of a business, specifically concerning the transfer of intellectual property and the provision of training. Mazija sought damages for losses allegedly incurred due to Prentice's failure to fulfil these contractual obligations.

The County Court was required to determine whether Prentice had breached the contract by failing to properly transfer the intellectual property associated with the business and by not providing adequate training as stipulated in the agreement. A further issue was the extent of the damages suffered by Mazija as a consequence of these alleged breaches.

Judge Nicholls found that Prentice had indeed breached the contract in relation to the transfer of intellectual property and the provision of training. The court applied principles of contract law, focusing on the express terms of the agreement and the parties' intentions. Prentice's failure to meet these obligations was deemed a material breach. The court assessed damages based on the losses directly attributable to these breaches, considering the diminished value of the business and the costs incurred by Mazija in rectifying Prentice's failures.

The court ordered that Prentice pay damages to Mazija in the sum of $100,000, plus interest and costs.

Orders