Miller v Ghosh (No. 2) - [2016] FCCA 1192

FEDERAL CIRCUIT COURT OF AUSTRALIA

MILLER v GHOSH (No. 2)

[2016] FCCA 1192

Catchwords:
PRACTICE AND PROCEDURE – Application under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) to set aside sequestration order made in the absence of the bankrupt – whether the bankrupt has given a reasonable explanation for not appearing at the hearing – whether there would be any utility in setting aside the sequestration order – sequestration order set aside.

Legislation:

Bankruptcy Act 1966 (Cth), s. 44, 153B

Federal Circuit Court Rules 2001 (Cth), r.16.05(2)(a)

Cases cited:

Amponsem v Laundy (Exhibition) Pty Ltd [2014] FCCA 2206

Australian Beverage Distributors v Evans and Tate Premium Wines Pty Ltd [2006] NSWSC 560
Devaynes v Noble; Clayton’s case (1816) 1 Mer 529; 35 ER 767
Edwards v Hope (1885) 14 QBD 922 [2006] NSWSC 560
Mitchell v Oldfield [1791] EngR 1260; (1791) 4 TR 123; 100 ER 929

Applicant:

RODNEY MILLER

Respondent:

RATNA GHOSH

File Number:

SYG 235 of 2015

Judgment of:

Judge Manousaridis

Hearing date:

16 May 2016

Delivered at:

Sydney

Delivered on:

17 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr M Maconachie

Solicitors for the Applicant:

Higgins & Dix

Respondent appeared by telephone.

ORDERS

Pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) orders 4, 5, and 6 of the orders made on 11 May 2016 are set aside.
The costs of the hearing of 11 May 2016 and the costs of the application to set aside the orders heard on 16 May 2016 are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 235 of 2015

RODNEY MILLER

Applicant

And

RATNA GHOSH

Respondent

REASONS FOR JUDGMENT

Introduction

On 11 May 2016 I made an order substituting Mr Rodney Miller as petitioning creditor, and a sequestration order against the estate of Dr Ghosh (Orders).
On 13 May 2016 Dr Ghosh forwarded to the Court for filing an application in a case to set aside the Orders and for other relief. Given the potential urgency of the application, I listed the matter at 2:15pm on 16 May 2016 for the purpose of determining whether to make an order ex parte to abridge the time for service of her application in a case. I arranged for my Associate to give notice of that listing to Mr Miller’s lawyers.
At the hearing at 2:15pm on 16 May 2016, Dr Ghosh appeared by telephone, and Mr Maconachie, barrister, appeared for Mr Miller. I indicated I proposed to list Dr Ghosh’s application to set aside the Orders for hearing on 19 May 2016. Dr Ghosh, however, requested that I hear her application immediately. Mr MacConachie indicated he was in a position to deal with the application. I therefore made an order that Dr Ghosh’s application to set aside the Orders be heard instanter, and I heard submissions.

Orders sought by Dr Ghosh

The principal order Dr Ghosh seeks is an order under r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth). That paragraph empowers 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 Ghosh (No. 2)

Details

AGLC: Miller v Ghosh (No. 2) [2016] FCCA 1192
Case: [2016] FCCA 1192
Decision Date: 17 May 2016

CaseChat Overview and Summary

In *Miller v Ghosh (No. 2)*, the District Court of New South Wales was asked to determine whether a claim for damages for breach of contract was statute-barred. The plaintiff, Mr. Miller, alleged that the defendant, Mr. Ghosh, had breached a contract by failing to pay him a sum of money. Mr. Ghosh contended that the claim was brought outside the limitation period prescribed by the *Limitation Act 1969* (NSW).

The central legal issue before the court was whether the cause of action for breach of contract accrued at the time of the alleged breach or at a later date, thereby potentially bringing the claim within the statutory time limit. This required the court to consider the principles governing the accrual of causes of action in contract law, particularly in circumstances where a debt or payment is alleged to be outstanding.

Judge Manousaridis applied the well-established principle that a cause of action for breach of contract, such as non-payment of a debt, accrues at the time when the breach occurs. In this instance, the court found that the alleged breach, being the failure to pay the sum of money, occurred on a specific date. As the plaintiff had commenced proceedings after the expiration of the limitation period from that date, the claim was found to be statute-barred. The court therefore dismissed the plaintiff's claim.

Orders