Richardson v Ford - [2017] FCCA 1280

FEDERAL CIRCUIT COURT OF AUSTRALIA

RICHARDSON & ANOR v FORD

[2017] FCCA 1280

Catchwords:
BANKRUPTCY – Creditor’s petition – opposition – non-compliance with Bankruptcy Notice – respondent paid amount owing into lawyer’s trust account – applicants did not accept the amount owing due to allegations of respondent being insolvent – evidence demonstrates respondent unable to satisfy debts owed – sequestration order made.

Legislation:

Bankruptcy Act 1966 (Cth), ss.30(1), 52, 156A(3)

Cases cited:

Australia & New Zealand Banking Group Ltd v Foyster [2000] FCA 400
Boral Montoro Pty Ltd v McLachlan [2007] FMCA 533
Connellan v Murphy [2017] VSCA 116
International Alpaca Management Pty Ltd v Ensor [1999] FCA 72
McIntosh v Shashoua (1931) 46 CLR 494; [1931] HCA 56

Picone v Velos [2007] FCA 1183

First Applicant:

BEVERLEY ELSA RICHARDSON

Second Applicant:

WILLIAM RAYMOND RICHARDSON

Respondent:

TIMOTHY JAMES FORD

File Number:

SYG 3275 of 2016

Judgment of:

Judge Smith

Hearing date:

9 June 2017

Date of Last Submission:

9 June 2017

Delivered at:

Sydney

Delivered on:

20 June 2017

REPRESENTATION

Solicitors for the Applicant:

Mr D. Fleming (Pigott Stinson)

Solicitors for the Respondents:

Mr R. Hughes (as agent) (Smyth Turner Wall)

ORDERS

A sequestration order be made against the estate of Timothy James Ford.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3275 of 2016

BEVERLEY ELSA RICHARDSON

First Applicant

WILLIAM RAYMOND RICHARDSON

Second Applicant

And

TIMOTHY JAMES FORD

Respondent

REASONS FOR JUDGMENT

On 27 April 2016, Bankruptcy Notice, BN190350 (Bidvest Bankruptcy Notice) directed to the respondent, Timothy James Ford was issued at the request of Bidvest Australia Ltd (Bidvest). The Bidvest Bankruptcy Notice was in respect of an unpaid judgment debt in the sum of $58,439.04. The respondent was served with Bidvest’s Bankruptcy Notice on 2 May 2016.
The respondent did not comply with Bidvest’s Bankruptcy Notice, or make any application to the Court, to have the Bankruptcy Notice set aside within 21 days after being served with Bidvest’s Bankruptcy Notice.
On 21 November 2016, Bidvest filed a creditor’s petition in this Court naming the respondent and Frederick George Pawlak as respondents to that petition.
On 16 December 2016, Bankruptcy Notice BN210994 (Applicants’ Bankruptcy Notice) directed to the respondent was issued by the applicants in respect of an unpaid judgment debt in the sum of $23,370.00.
The respondent was served with the Applicants’ Bankruptcy Notice on 21 December 2016.
The respondent did not comply with the Applicants’ Bankruptcy Notice, or make any application to the Court, to have the Applicants’ Bankruptcy Notice set aside within 21 days after being served with the Applicants’ Bankruptcy Notice.
On 24 January 2017, the Court ordered, by consent, that Bidvest’s creditor’s petition be adjourned to 21 February 2017 so as to allow the respondent time to arrange refinancing to pay out his creditors.
On or about 24 February 2017, Bidvest accepted an offer of payment in relation to the debt which the respondent owed to Bidvest.
On 24 February 2017, the respondent’s legal representatives, Smyth Turner…

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 Richardson v Ford

Details

AGLC: Richardson v Ford [2017] FCCA 1280
Case: [2017] FCCA 1280
Decision Date: 20 June 2017

CaseChat Overview and Summary

In *Richardson v Ford*, the Supreme Court of Queensland considered a dispute between a vendor and a purchaser concerning the sale of a property. The purchaser sought to terminate the contract, alleging a breach by the vendor.

The central legal issue before the court was whether the vendor had breached a contractual obligation to provide vacant possession of the property on the settlement date. This involved an interpretation of the contract terms and the legal meaning of "vacant possession" in the context of the property being occupied by a tenant at the time of settlement.

Justice Smith found that the vendor had indeed breached the contract. His Honour reasoned that the presence of a tenant, even one with a right to occupy the property, meant that the vendor could not deliver vacant possession as required by the contract. The court applied the principle that vacant possession requires the vendor to give up all possession and control of the property, not merely to transfer title. Consequently, the purchaser was entitled to terminate the contract and claim damages.

Orders