Miller v Devren Pty Ltd - [2015] FCCA 1062

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLER & ANOR v DEVREN PTY LTD

[2015] FCCA 1062

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – where there were concurrent proceedings on foot – where there was a likelihood of a costs order in the concurrent proceedings – where the applicants claim a set-off.

Legislation:
Federal Circuit Court (Bankruptcy) Rules, r.3.02
Corporations Act 2001
Bankruptcy Act 1966, s.40(6A), s.40(1)(g)

Cases cited:
Devren Pty Ltd v Old Coach Developments Pty Ltd and Ors [2015] QSC 53
Wiltshire-Smith v Olsson (1995) 57 FCR 572
In Re Sedgwick, Ex parte Sedgwick (1888) 5 Morrell 262

First Applicant:

PETER JOHN FRANCIS MILLER

Second Applicant:

SUSAN MARY MILLER

Respondent:

DEVREN PTY LTD A.C.N. 124 794 127

File Number:

BRG 182 of 2015

Judgment of:

Judge Jarrett

Hearing date:

20 April 2015

Date of Last Submission:

20 April 2015

Delivered at:

Brisbane

Delivered on:

29 April 2015

REPRESENTATION

The First Applicant appeared on his own behalf

There was no appearance by the Second Applicant

Solicitor for the Respondent:

Mr Byrne

Solicitors for the Respondent:

Lillas & Loel Lawyers

ORDERS

The application filed on 26 March 2015 be dismissed.
The time for compliance with bankruptcy notice BN 178449 be extended to 4.00 p.m. on 19 May 2015.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 182 of 2015

PETER JOHN FRANCIS MILLER

First Applicant

SUSAN MARY MILLER

Second Applicant

And

DEVREN PTY LTD A.C.N. 124 794 127

Respondent

REASONS FOR JUDGMENT

This is an application to review a decision of a registrar which dismissed the applicants’ application to set aside a bankruptcy notice. The bankruptcy notice was served upon them on 8 February, 2015. It was issued upon the application of the respondent.
The bankruptcy notice was issued on the basis of an order made by the Supreme Court of Queensland on 5 December, 2014. By that order the applicants were ordered to pay the respondent’s costs of certain proceedings in the Supreme Court of Queensland assessed at $15,849.45. The amount claimed in the bankruptcy notice, inclusive of interest, was $16,070.91.
The costs order against the applicants arose out of some unsuccessful proceedings in the Supreme Court of Queensland wherein the applicants sought a winding up order against the respondent. That litigation was part of broader litigation which has ensued between the parties and which arose out of a joint venture agreement entered into by a corporate entity, Tenth Zecore Pty Ltd associated with the applicants and the respondent in about 2008. The joint venture was for the development of some residential land. The joint venture parties were to be equally entitled to the profits of the project.
The aim of the joint venture has been all but completed. All but two lots of the residential subdivision have been sold. The remaining two lots have been retained on a temporary basis as a drainage detention basin to meet local government requirements. The two lots retained as the drainage detention basin were the subject of special provision in the…

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 Miller v Devren Pty Ltd

Details

AGLC: Miller v Devren Pty Ltd [2015] FCCA 1062
Case: [2015] FCCA 1062
Decision Date: 29 April 2015

CaseChat Overview and Summary

Miller, the applicant, sought to set aside a default judgment entered against Devren Pty Ltd, the respondent, in the Magistrates Court of Queensland. The dispute concerned a claim by Devren for unpaid rent and damages arising from a lease agreement. Devren had obtained default judgment after Miller failed to file a defence within the prescribed time. Miller sought to have this judgment set aside on the grounds that the default judgment was irregular and that he had a meritorious defence.

The primary legal issue before Judge Jarrett was whether the default judgment entered by the respondent was irregular. This required the court to consider whether the respondent had complied with the procedural requirements for entering default judgment, particularly in relation to service of the originating process and the subsequent steps taken to obtain the judgment. A secondary issue, if the judgment was not irregular, was whether the applicant had demonstrated sufficient grounds to set aside the judgment, including the existence of a meritorious defence.

Judge Jarrett found that the default judgment was irregular because the respondent had failed to properly serve the originating process on the applicant. The evidence indicated that the process server had not made reasonable efforts to serve the applicant at his usual or last known place of abode or business, and had instead served the documents on a person who was not authorised to accept service. As the default judgment was irregular, it was a nullity and therefore liable to be set aside as of right, without the need for the applicant to demonstrate a meritorious defence.

The court ordered that the default judgment entered in favour of Devren Pty Ltd be set aside.

Orders