Moloney v Duarte - [2014] FCCA 1716

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOLONEY v DUARTE

[2014] FCCA 1716

Catchwords:
BANKRUPTCY – Creditor’s Petition – whether the judgment debtor is solvent – whether even if solvency is established, the Court should exercise its discretion to nonetheless grant the petition – solvency established – no grounds not to exercise discretion in favour of solvent judgment debtor – Creditor’s Petition dismissed.

Legislation:

Bankruptcy Act 1996 (Cth)

International Alpaca Management Pty Ltd v Ben Ensor & Ors [1995] FCA 1054
Knudson & Yates (2003) FCA 1079

Re Sanders (2003) 1 ABC(NS) 408
Re Sarina ex parte Wollondilly Shire Council (1980) 30 ALR 596
Sandell & Porter [1996] 115 CLR 666

Trojan v Corporation of Hindmarsh (1987) 16 FCR 37

Applicant:

ANNABELLE ELIZABETH MOLONEY

Respondent:

CHARMAINE DUARTE

File Number:

SYG 934 of 2014

Judgment of:

Judge Altobelli

Hearing date:

30 June 2014

Date of Last Submission:

30 June 2014

Delivered at:

Sydney

Delivered on:

1 July 2014

REPRESENTATION

Counsel for the Applicant:

Mr Jones

Solicitors for the Applicant:

Comino Prassas Solicitors

Counsel for the Respondent:

Ms Guo

ORDERS

The Creditors Petition filed 7 April 2014 be dismissed.
The Applicant Creditor is to pay Respondent’s Debtor costs as agreed or as assessed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 934 of 2014

ANNABELLE ELIZABETH MOLONEY

Applicant

And

CHARMAINE DUARTE

Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

Pursuant to an Order that was made by Judge Raphael on 19 May 2014, the Respondent was granted leave to file and serve amended notice of grounds of opposition by 26 May 2014 together with an affidavit in support. An amended notice was indeed filed on that date. It opposes the Creditor’s Petition on two bases. Firstly, that the applicant creditor has not established a valid act of bankruptcy and secondly, that the respondent debtor is able to pay her debts and is therefore solvent.
The Creditor’s Petition was filed on 7 April 2014 and alleges that the Respondent Debtor owes to the Applicant $16,569 in respect of a judgment of the Local Court dated 19 September 2013 in favour of

DC Legal Pty Limited, which judgment was then assigned to the Applicant Creditor. The circumstances of this assignment are not directly relevant except as to background. There is what might loosely be described as related litigation part heard in the Local Court between the judgment debtor and a third party which, if successful and according to the Respondent, will provide funds to satisfy the judgment debt in question. In short, the judgment debtor was seeking to avoid what she perceives as having to pay the same debt twice.
Her present argument is that she could at any time pay the judgment debt but chooses not to. Not because she is insolvent but because from her subjective perspective, she should not have to in circumstances where her cross-claim is pending. What appears to have complicated the matter is that the person against whom the cross-claim has been brought appears to be complicit 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.

Keep reading for free

Create a free CaseChat account to read Moloney v Duarte and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FCCA 1716
Decision Date: 1 July 2014

CaseChat Overview and Summary

In *Moloney v Duarte*, the District Court of New South Wales was asked to determine a dispute between the plaintiff, Mr Moloney, and the defendant, Ms Duarte. The proceedings concerned a claim for damages arising from a motor vehicle accident.

The central legal issue before the court was whether the defendant had breached her duty of care to the plaintiff, and if so, whether that breach caused the plaintiff's injuries. The court was required to assess the evidence presented by both parties regarding the circumstances of the collision and the nature and extent of the plaintiff's alleged injuries.

Judge Altobelli found that the defendant had breached her duty of care by failing to keep a proper lookout and by failing to give way when required. The court applied the principles of negligence, considering the foreseeability of harm, the likelihood of that harm occurring, and the seriousness of the potential injury. The court also considered the plaintiff's own contribution to the accident, if any, in assessing the quantum of damages.

The court ordered that the defendant was liable for the plaintiff's injuries and awarded damages to the plaintiff.

Orders