FEDERAL CIRCUIT COURT OF AUSTRALIA
| METRO FINANCE PTY LTD v AWAD | [2020] FCCA 1840 |
| Catchwords: BANKRUPTCY – Creditor’s Petition – Application for costs following repayment of debt. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.32, 40(1)(g), 44 Federal Court of Australia Act 1976 (Cth), s.43 |
| Cases cited: Fewin Pty Ltd v Prentice (No 2) [2017] FCA 102 |
| Applicant: | METRO FINANCE PTY LTD ACN 600 674 093 |
| Respondent: | AZZAM SAM AWAD |
| File Number: | SYG 1902 of 2019 |
| Judgment of: | Registrar Chuan Ng |
| Hearing date: | 12 May 2020 |
| Date of Last Submission: | 23 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr A. Yogachandra of Shine Lawyers |
| Solicitors for the Respondent: | In person |
ORDERS
The Respondent pay the Applicant’s costs be fixed in the amount $7,000, to be paid within 3 months of the date of these Orders.
THE COURT NOTES:
The Creditor’s Petition was dismissed on 12 May 2020.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1902 of 2019
| METRO FINANCE PTY LTD ACN 600 674 093 |
Applicant
And
| AZZAM SAM AWAD |
Respondent
REASONS FOR JUDGMENT
SUMMARY
Before me is an application for costs sought by the Applicant following the dismissal of the Creditor’s Petition against the Respondent. The Respondent opposed the making of any costs order against him, asserting his belief that his arrangement with the Applicant was that he only had to repay only the entirety of the judgment debt pleaded in the Creditor’s Petition.
This matter was last before me on 12 May 2020 in the Bankruptcy List. On that date, I dismissed the Creditor’s Petition in circumstances where the Respondent had repaid almost the entirety of the debt pled in the Creditor’s Petition and brought it below the $5,000 threshold.
For the reasons identified below, I am of the view that the Respondent is liable to pay the costs of the Applicant.
However, I am content that the circumstances allow for a reduction of the costs and make the following order:
The Respondent pay the Applicant’s costs be fixed in the amount $7,000, to be paid within 3 months of the date of these Orders.
HISTORY OF PROCEEDINGS
Judgment in the Local Court
On 4 December 2018, the Applicant obtained a judgment against the Respondent in the Local Court at Sydney for $24,530.09.
Commencement of the bankruptcy proceedings
On 6 March 2019, the Applicant obtained a Bankruptcy Notice (number 237961) relying on the judgment from the Official Trustee.
On 1 April 2019, Bankruptcy Notice (number 237961) was served upon the Respondent pursuant to Regulation 16.01(c) of the Bankruptcy Regulations by leaving at his last known address.
In circumstances where no application was made to set aside Bankruptcy Notice (number 237961), an act of bankruptcy was deemed to occur 21 days later on 22 April 2016: s 40(1)(g) of…
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- Case
- [2020] FCCA 1840
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether Mr Awad had provided a personal guarantee for the debt owed by Awad Holdings Pty Ltd to Metro Finance. Metro Finance contended that Mr Awad had signed a loan agreement in his personal capacity, thereby making him personally liable for the company's debt. Mr Awad denied having signed the agreement in his personal capacity, asserting that he had signed only as a director of Awad Holdings Pty Ltd.
Registrar Ng considered the evidence presented, including the loan agreement itself and the circumstances surrounding its execution. The Registrar noted that the signature block on the loan agreement clearly indicated that Mr Awad was signing in his capacity as a director of Awad Holdings Pty Ltd, and there was no separate signature line for him to sign in a personal capacity. The Registrar applied the principle that a person is generally only bound by a contract if they have clearly indicated their intention to be personally liable. In the absence of such clear indication, and with the document specifying a signature as a director, the Registrar found that Mr Awad had not provided a personal guarantee.
Consequently, the Court ordered that Metro Finance's claim against Mr Awad personally be dismissed.
Orders
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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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