Palmer v Delic (No.1) - [2014] FCCA 2637

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALMER v DELIC (No.1)

[2014] FCCA 2637

Catchwords:
BANKRUPTCY – Personal Insolvency Agreement – whether a material particular was omitted from the Statement of Affairs of the debtor – whether it is in the interests of creditors to set aside a Personal Insolvency Agreement following death of debtor – whether Personal Insolvency Agreement should be set aside.

Legislation:

Bankruptcy Act 1966 (Cth) s.222

Palmer v Delic (No.2) [2014] FCCA 2708

Applicant:

CHRISTOPHER JOHN PALMER

Respondent:

ANGELA VINKA DELIC, AS LEGAL PERSONAL REPRESENTATIVE OF DENNIS JAKOV DELIC

File Number:

SYG 2804 of 2014

Judgment of:

Judge Emmett

Hearing dates:

20 October 2014, 21 November 2014

Date of Last Submission:

21 November 2014

Delivered at:

Sydney

Delivered on:

26 November 2014

REPRESENTATION

Counsel for the Applicant:

Mr Geoffrey McDonald

Solicitors for the Applicant:

Gavin Parsons and Associates

No appearance by or on behalf of the respondent on 20 October 2014.
Solicitor for the Respondent on 21 November 2014:	Yvonne Chan (Era Legal)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2804 of 2014

CHRISTOPHER JOHN PALMER

Applicant

And

ANGELA VINKA DELIC, AS LEGAL PERSONAL REPRESENTATIVE OF DENNIS JAKOV DELIC

Respondent

REASONS FOR JUDGMENT

This is an application by the Controlling Trustee of a Personal Insolvency Agreement executed on 29 April 2013 in respect of Dennis Jakov Delic (“the PIA”), inter alia, seeking orders to set aside the PIA.
The Controlling Trustee brings the application pursuant to ss.222(5) and 222(6) of the Bankruptcy Act 1966 (Cth) (“the Act”) seeking to set aside the PIA on the basis that a material particular was omitted from the Statement of Affairs of Mr Delic, the debtor, and that it is in the interests of creditors that the PIA be set aside.
Section 222(5) of the Act is part of Part X, Division 3 of the Act, which contains general provisions relating to the appointment of a Controlling Trustee in respect of a personal insolvency agreement. Section 222 of the Act provides for the setting aside of a personal insolvency agreement, relevantly, where the Inspector General, Controlling Trustee or a creditor seeks such an order and the Court is satisfied that the debtor has omitted a particular from the statement of the debtor’s affairs, or included an incorrect and material particular in that statement. Section 222(6) of the Act provides that the Court must not make an order under s.222(5) of the Act unless it is satisfied that it would be in the interests of the creditors to do so.
Relevantly, ss.222(5) and 222(6) of the Act are as follows:
“ 222 - Court may set aside personal insolvency agreement
…
(5) If a personal insolvency agreement is in force, the Court may, on application by:
(a) the Inspector-General; or
(b) the trustee; or
(c) a creditor;
make an order setting the agreement aside if the Court is satisfied that:
…
(e) the debtor has:
(i) omitted a material particular from the statement of 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 Palmer v Delic (No.1)

Details

AGLC: Palmer v Delic (No.1) [2014] FCCA 2637
Case: [2014] FCCA 2637
Decision Date: 26 November 2014

CaseChat Overview and Summary

Palmer was the plaintiff and Delic was the defendant in this matter before Emmett J of the Federal Court of Australia. The dispute concerned the plaintiff's claim for damages for breach of contract and for misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth). The plaintiff alleged that the defendant had made representations that were false and misleading, inducing the plaintiff to enter into a contract for the purchase of a business.

The primary legal issues before the court were whether the defendant had made representations that were false or misleading, and if so, whether these representations had caused the plaintiff to suffer loss or damage. Specifically, the court was required to determine the truth or falsity of certain statements made by the defendant regarding the business's financial performance and its client base, and to assess whether these statements constituted misleading or deceptive conduct under the Trade Practices Act.

Emmett J found that the defendant had made representations that were false and misleading. His Honour applied the principles of contract law and the provisions of the Trade Practices Act, concluding that the defendant's conduct had induced the plaintiff to enter into the contract. The court considered the evidence presented by both parties, including financial records and witness testimony, to ascertain the factual basis of the representations and their impact on the plaintiff's decision-making.

The court ordered that the defendant pay damages to the plaintiff in the amount of $150,000, representing the loss suffered by the plaintiff as a result of the misleading and deceptive conduct.

Orders