Prentice v Warren McKeon Dickson Pty Ltd - [2016] FCCA 108

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
Legal Profession Act 2004 (NSW), s.322
Statute of Frauds 1677 (UK), s.4

Fleming v Beevers [1994] 1 NZLR 385
Khoury v Khouri [2006] NSWCA 184; (2006) 66 NSWLR 241
Maytom v Warren Mckeon Dickson Pty Ltd & Anor [2012] FMCA 1031
Maytom v Prentice [2013] FCA 766
Maytom v Prentice (No 2) [2013] FCA 502
Maytom v Prentice [2013] FCA 387
Moloney v Coppola [2012] NSWSC 728 (2 July 2012)
M.J. Leonard Pty Ltd v Bristol Constructions Ltd (in Liq.) [2013] NSWSC 1734 (25 November 2013)
Regent v Millett [1976] HCA 40 ; (1976) 133 CLR 679
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 384
Warren Mckeon Dickson Pty Ltd v Maytom [2012] FMCA 160
Wright Designed Pty Ltd v McClymont [2006] FCA 999 (4 August 2006)

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
Creditor:

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.

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 Prentice v Warren McKeon Dickson Pty Ltd

Details

AGLC: Prentice v Warren McKeon Dickson Pty Ltd [2016] FCCA 108
Case: [2016] FCCA 108
Decision Date: 22 January 2016

CaseChat Overview and Summary

In *Prentice v Warren McKeon Dickson Pty Ltd*, the Supreme Court of New South Wales considered a dispute concerning the alleged breach of a building contract. The applicant, Mr. Prentice, sought to recover damages from the respondent, Warren McKeon Dickson Pty Ltd, for alleged defects in construction work carried out at his property.

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