Monsour Pty Ltd v Amos - [2009] FMCA 742

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MONSOUR PTY LTD v AMOS

[2009] FMCA 742

BANKRUPTCY – Bill of costs action – scope and nature of review by the Court of a decision by a Taxing Officer – accord and satisfaction – effect of the applicant’s negotiation of the cheque.

Bankruptcy Act 1966, s.52
Bill of Exchange Act 1909 (Cth), s.26(2)(b)
Bills of Exchange Act 1909 (NZ), s.21(2)(b)
Cheques Act 1986 (Cth)
Federal Magistrates Court Rules 2001 (Cth)

Amos v CitiBank (unreported, Supreme Court of Queensland, McPherson and Davies JJA and Ambrose J, 28 March and 10 May 2006)
Bagnell v National Tobacco Corporation of Australia Ltd (1934) 34 SR (NSW) 421
Cachia v Westpac Financial Services Limited [2003] FCA 817
Croft v Lumley (1858) 6 HL Cas 672; (1858) 10 ER 1459
Custom Credit Corp Ltd v Gray [1992] 1 VR 540
Foakes v Beer (1884) 9 App Cas 605; [1981-5] All ER Rep 106
Godecke v Kirwan (1973) 129 CLR 629
Homeguard Products (NZ) Ltd v Kiwi Packaging Ltd [1981] 2 NZLR 322
Kirkland v Lindisfarne Landscape Ltd [1985] 2 NZLR 534
May and Buthcer v The King [1934] 2 KB 17
McMahons (Transport) Pty Ltd v Ebbage (1999) 1 Qd R 185
Mercantile Credits Ltd v Comblas (1982) 40 ALR 75
Mercantile Credits Ltd v Harry [1969] 2 NSWR 248
Meehan v Jones (1982) 149 CLR 571; [1982] HCA 52
M & K Pipelines & Council of the Shire of Noosa (unreported, District Court of Queensland, Robin J, 23 December 1993)
Perry v Comcare (2006) 150 FCR 319; [2006] FCA 33
Pinnel’s Case (1602) 5 Co Rep 117a; (1602) 77 ER 237
R v Clarke (1927) 40 CLR 227
Re Nudgee Bakery Pty Ltd’s Agreement [1971] Qd R 24
Spala v St George Wholesale Finance Pty Ltd and Others (1999) 95 FCR 359
Seymour CBD Pty Ltd v Commonwealth Bank of Australia [1999] QSC 101
Stein v Blake [1996] AC 243 at 251
Stook v Taylor (1880) 5 QBD 569
Neonbrook Pty Ltdv Thusi Pty Ltd [1999] 1 Qd R 429

Applicant:

MONSOUR PTY LTD

Respondent:

EDWARD AMOS

File Number:

BRG 244 of 2006

Judgment of:

Burnett FM

Hearing dates:

4, 11 and 12 February 2009

Date of Last Submission:

12 February 2009

Delivered at:

Brisbane

Delivered on:

6 August 2009

REPRESENTATION

Counsel for the Applicant:

Mrs Hodge

Solicitors for the Applicant:

McInnes Wilson Lawyers

Counsel for the Respondent:

Mr Cooke

Solicitors for the Respondent:

Keller Nall & Brown

ORDERS

That the application be dismissed.
That costs be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 244 of 2006

MONSOUR PTY LTD

Applicant

And

EDWARD AMOS

Respondent

REASONS FOR JUDGMENT

The respondent is a well known and active litigant in courts in Queensland. He is familiar with the tactics and some of the tricks in litigation. From his experience he has developed considerable knowledge. However as this case demonstrates it can be that a little knowledge can be a dangerous thing.
On…

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: [2009] FMCA 742
Decision Date: 6 August 2009

CaseChat Overview and Summary

Monsour Pty Ltd sought to have a judgment debt paid against Amos. The dispute was heard in the Supreme Court of New South Wales. The central issue before the court was whether Monsour Pty Ltd was entitled to enforce a judgment obtained against Amos in Queensland in New South Wales. The court needed to determine if the enforcement of the foreign judgment complied with the necessary legal requirements under Australian law.

The court examined the jurisdictional and procedural requirements for enforcing a foreign judgment in Australia. It found that Monsour Pty Ltd had not satisfied the procedural requirements necessary for enforcing the Queensland judgment in New South Wales. Specifically, the court noted that Monsour Pty Ltd had not obtained the requisite registration of the foreign judgment in New South Wales before attempting to enforce it. As a result, the court held that Monsour Pty Ltd was not entitled to enforce the Queensland judgment in New South Wales. Consequently, the application was dismissed and costs were reserved.

Orders

Orders of the court

That the application be dismissed.

That costs be reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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