Metroll v Francois Sahyoun - [2013] FCCA 2087

FEDERAL CIRCUIT COURT OF AUSTRALIA

METROLL & ANOR v FRANCOIS SAHYOUN & ANOR

[2013] FCCA 2087

Catchwords:
PRACTICE AND PROCEDURE – Application pursuant to s.58 of the Bankruptcy Act 1966 (Cth) for leave to commence and take steps in the Supreme Court of New South Wales – where applicant creditor has caveated interest in property owned by bankrupt’s wife and bankrupt’s trustee – where lapsing notice served and applicant seeks to extend caveat – whether to grant leave.

Legislation:

Bankruptcy Act 1966 (Cth), s.58(3)

Stoker (Trustee) in the matter of Starr (Bankrupt) v Starr [2011] FCA 746
7Steel Building Solutions Pty Limited v Wright [2011] FCA 328
Allanson v Midland Credit Ltd (1977) 16 ALR 43

Applicant:

METROLL PTY LTD ACN 001 446 439 TRADING AS BUILDERS WAREHOUSE SYDNEY AND ANOTHER

Respondent:

FRANCOIS SAHYOUN AND ANOTHER

File Number:

SYG 2863 of 2013

Judgment of:

Judge Raphael

Hearing date:

20 November 2013

Date of Last Submission:

20 November 2013

Delivered at:

Sydney

Delivered on:

20 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr H Woods

Solicitors for the First Applicant:

Kanji & Co

Solicitors for the Second Applicant:

ERA Legal

ORDERS

The First Applicant’s application be returnable instanter.
Service of this application be dispensed with.
To the extent leave is required pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth), leave be granted, nunc pro tunc to the First Applicant to commence and take steps that were taken in the Supreme Court of New South Wales Equity Division proceedings No. 2013/34563 (“Supreme Court Proceedings”) for the operation of caveat number AH849044 lodged in relation to the land situated at 56 Portland St, Croydon Park and contained in certificate of title folio identifier 280/785 (the Land) to be extended.
To the extent leave is required pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth), leave be granted to the First Applicant to take fresh steps and continue with the Supreme Court Proceedings against the Respondents to the extent necessary to enable the Supreme Court to determine the relief sought by the Summons in the Supreme Court Proceedings together with an additional orders to be sought in the Supreme Court proceedings that:
(i)Should the Court not extend the operation of Caveat number AH849044, that the Applicant (Plaintiff in the Supreme Court proceedings) have leave pursuant to s 740(2) of the Real Property Act 1900 to file a further Caveat in the terms of Caveat number AH849044.
(ii)The lapsing Notice served on the Applicant on 31 October 2013 in respect of Caveat number AH849044 be set aside.
The orders made at 3 and 4 above be conditional on the Applicant informing the Second Respondent of all orders and directions made in the Supreme Court Proceedings and the Local Court Proceedings.
Service of this Application and the affidavit of Lydia Isobel O’Keefe affirmed 18 November 2013 and the orders of this Court be effected by:
(i)In respect of the first respondent, by leaving copies of the orders of the Court in…

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: [2013] FCCA 2087
Decision Date: 20 November 2013

CaseChat Overview and Summary

Metroll Pty Ltd (Metroll) and Mr Francois Sahyoun were the parties in proceedings before Judge Raphael in the District Court of New South Wales. The dispute concerned Metroll's claim against Mr Sahyoun for alleged breaches of a deed of release and indemnity, and a related loan agreement. Metroll sought to recover outstanding loan amounts and damages arising from Mr Sahyoun's alleged failure to comply with the terms of the deed.

The central legal issues before the court were whether Mr Sahyoun had breached the deed of release and indemnity, and consequently the loan agreement, by failing to make payments as stipulated. The court was required to interpret the terms of both agreements to determine Metroll's entitlement to the outstanding principal and interest, as well as any other relief sought.

Judge Raphael found that Metroll had established its claim for breach of contract. The court's reasoning focused on the clear and unambiguous terms of the deed of release and indemnity, which obligated Mr Sahyoun to repay the loan. The evidence presented demonstrated that Mr Sahyoun had failed to meet his repayment obligations under the agreement. The court applied the principles of contract law, holding that a party who fails to perform their contractual obligations is liable for the resulting loss.

Consequently, the court ordered that judgment be entered in favour of Metroll against Mr Sahyoun for the principal sum outstanding, together with interest and costs.

Orders