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

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALMER v DELIC (No.2)

[2014] FCCA 2708

Catchwords:
BANKRUPTCY – Personal Insolvency Agreement – insolvent deceased Estate – whether a person other than a creditor or legal personal representative can present a petition for the insolvent deceased Estate to be administered in bankruptcy – whether s.30 of the Bankruptcy Act 1966 (Cth) permits the Controlling Trustee of a Personal Insolvency Agreement to have standing to present a petition to have the insolvent deceased Estate administered in bankruptcy where the Controlling Trustee applies only in that capacity and not as a creditor or Legal personal representative of the deceased Estate.

Legislation:

Bankruptcy Act 1966 (Cth) ss.30, 222, 244, 247, Part V, Part X, Part XI.
Bankruptcy Regulations 1996 (Cth) reg.11.01

Palmer v Delic (No.1) [2014] FCCA 2637
Re John Codrington; Ex Parte: Don Mckay Tourist & Charter Pty Limited v John Codrington [1989] FCA 349
Robertson and Anor v Moran and Ors [2011] FMCA 496
Meinhardt (Hong Kong) Ltd v William Lindsay Meinhardt (Deceased) & Ors (No 2) [2006] FCA 1323

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, 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 appointed Controlling Trustee of the Estate of the now deceased debtor, Dennis Jakov Delic, to determine if the applicant has standing to present a petition to administer the deceased debtor’s Estate in bankruptcy.
The debtor died around 20 January 2014. Prior to his death, the debtor had entered into a Personal Insolvency Agreement pursuant to which the applicant was appointed the Controlling Trustee (“the PIA”).
The applicant as Controlling Trustee of the PIA, executed on 29 April 2013, sought orders setting aside the PIA. On 20 October 2014, orders were made by me setting aside the PIA pursuant to ss.222(5) and 222(6) of the Bankruptcy Act 1966 (Cth) (“the Act”) and ex-tempore reasons given. However, in settling those reasons and in the light of these reasons for judgment, those Orders were set aside by me on 26 November 2014 in Palmer v Delic (No.1) [2014] FCCA 2637.
In submissions filed on 28 October 2014, the applicant sought the following declaration, orders and direction:
“1. A Declaration that subsection 30(1)(b) of the Act empowers the Court to make an order under subsection 222(10) for the administration of the deceased estate of Dennis Jakov DELIC under…

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.2)

Details

AGLC: Palmer v Delic (No.2) [2014] FCCA 2708
Case: [2014] FCCA 2708
Decision Date: 26 November 2014

CaseChat Overview and Summary

Palmer, the plaintiff, brought proceedings against Delic, the defendant, seeking damages for breach of contract and misleading and deceptive conduct. The dispute concerned the sale of a business, specifically a hotel, and the plaintiff alleged that the defendant had misrepresented the business's financial performance and prospects. The matter came before Emmett J of the Supreme Court of New South Wales.

The primary legal issues before the court were whether the defendant had breached the contract for the sale of the business by making misrepresentations, and whether the defendant's conduct in making those representations constituted misleading or deceptive conduct in contravention of the relevant consumer protection legislation. The court was required to determine the truth or falsity of the alleged misrepresentations and their impact on the plaintiff's decision to purchase the business.

Emmett J found that the defendant had made several misrepresentations regarding the hotel's profitability and turnover, which were material to the plaintiff's decision to enter into the contract. His Honour applied the principles of contract law relating to misrepresentation, including the requirement for the representation to be false, material, and relied upon by the representee. Furthermore, Emmett J held that these misrepresentations also constituted misleading and deceptive conduct under the applicable legislation, as they were likely to mislead or deceive a reasonable person in the circumstances. The court considered the evidence presented by both parties, including financial records and testimony, to assess the veracity of the claims made by the defendant.

The court ordered that the plaintiff was entitled to damages for the losses suffered as a result of the breach of contract and the misleading and deceptive conduct.

Orders