FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRENTICE v WARREN MCKEON DICKSON PTY LTD & ANOR | [2016] FCCA 108 |
| Catchwords: BANKRUPTCY – Application by trustee for directions under s.134(4) Bankruptcy Act – distribution of net sale proceeds of sale of bankrupt’s property – where surplus estate – how to treat debt owed to a discrete creditor – whether secured or unsecured – where s.44 Act not complied with – where retainer agreement unsigned – whether security created. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.5, 30 ,44, 58, 82, 116, 134, 153A, 306 Conveyancing Act 1919 (NSW) ss.23C, 25E, 54A |
| Applicant: | MAXWELL WILLIAM PRENTICE |
| First Respondent: | WARREN MCKEON DICKSON PTY LTD |
| Second Respondent: | GARY ALLAN MAYTOM |
| File Number: | SYG 3314 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 24 July 2015 |
| Date of Last Submission: | 9 September 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 22 January 2016 |
REPRESENTATION
| Solicitors for the Applicant: Solicitors for the First Respondent | Sally Nash & Co Warren McKeon Dickson Pty Ltd |
| Counsel for the First Respondent: | Ms Castle and Mr Bailey |
| The Second Respondent appeared by telephone |
ORDERS
The Court declares that, pursuant to s.306 of the Bankruptcy Act 1966 (Cth) (“the Act”), the Creditor’s non-compliance with s.44 of the Act does not invalidate any proceedings under the Act.
The Court further declares that, pursuant to s.58(5) of the Act, Warren McKeon Dickson Pty Ltd is a secured creditor (“the Creditor”).
The sale proceeds of the Bankrupt’s property should be distributed as follows:
(a)the costs, charges and expenses of the administration of the Bankrupt (including the cost of the present Application, and the remuneration and expenses of the Trustee);
(b)the amount owing to the Creditor, but ignoring any orders for costs made in favour of the Creditor but unpaid, and otherwise deducting any orders for costs made in favour of the Creditor which are already paid;
(c)the balance to the Bankrupt, but if the Bankrupt has not within 14 days of written request either:
(i)provided details of a bank account into which payment can be made; or
(ii)provided an address to which a cheque or payment may be forwarded, then
(iii)to the Official Receiver as if it were a payment under s.153A(4) of the Act.
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- AGLC
- Prentice v Warren McKeon Dickson Pty Ltd [2016] FCCA 108
- Case
- [2016] FCCA 108
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the respondent had breached its contractual obligations to perform the building work with due care and skill, and whether the alleged defects constituted such a breach. The Court also had to determine the appropriate measure of damages, if any, to be awarded to the applicant.
Judge Altobelli found that the respondent had breached the building contract by failing to perform the work to the required standard. The Court applied the principles of contract law, including the implied term of reasonable care and skill in the performance of services. The Court determined that the defects were substantial and had diminished the value of the property, entitling the applicant to damages. The Court ordered the respondent to pay damages to the applicant in an amount to be assessed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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