Robertson Homes (Qld) Pty Ltd v Twivey - [2011] FMCA 69

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROBERTSON HOMES (QLD) PTY LTD v TWIVEY

[2011] FMCA 69

BANKRUPTCY – Bankruptcy notice – extension of time – adjournment – abridgment – amendment of process – validity – overstatement of amount.

Bankruptcy Act 1966 (Cth), ss.33(1), 33(1)(c), 41, 41(5), 41(6), 41(6A), 52(2)

Airservices Australia v Ferrier [1996] HCA 54; (1996) 185 CLR 483
Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd & Ors (No.2) [1988] 2 ALL ER 880
Burton v Belgravia Investments Pty Ltd [1999] FCA 1840
Caltabiano v Electoral Commission of Qld & Anor [2009] QCA 182
Cory Brothers & Co Ltd v Owners of the Turkish Steamship Mecca “The Mecca” [1897] AC 286
Cumins v Deputy Commissioner of Taxation [2008] FCAFC 185
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Deputy Commissioner of Taxation v Cumins (No.5) [2008] FCA 794

Emerson v Wreckair Pty Ltd (1992) 33 FCR 581
Mackenzie & Anor v Albany Finance Ltd [2004] WASCA 301
Morlines Maritime Agency Ltd v Skulptor Vuchetich (And by Amendment Between) J Fenwick & Co Pty Ltd & Ors v The Proceeds of the Sale of the Ship "Skulptor Vuchetich" [1997] FCA 1629
Re a Debtor (1919) B & Cr 221

Re Clubb; Ex parte Clubb v Westpac Banking Corporation (1990) 93 ALR 123
Re Dier; Ex parte John Suduk (Federal Court of Australia – 9 March 1990 (BC 9003327))
Re Lynch; Ex parte Depela Pty Ltd(in liq) (1998) 153 ALR 271
Re Sgambellone; Ex parte Jacques (1994) 126 ALR 71
Re Shaddock; Ex parte Commonwealth Bank of Australia [1998] FCA 355
Re Walsh; Ex parte Deputy Commissioner of Taxation (NSW) (1982) 42 ALR 727
Re Wilhelmsen; Ex parte Gould (1986) 11 FCR 107
Robert Hudson Junior v Thomas James Donald & Anor [1997] FCA 852
Seovic Civil Engineering Pty Ltd v Groeneveld (1999) 161 ALR 543
SGRO v Liberty Funding Pty Ltd (2004) 207 ALR 625
Somes v Duke Group Ltd [2000] FCA 248
St George Wholesale Finance Pty Ltd v Spalla (2000) 181 ALR 682
Streimer v Tamas (1981) 54 FLR 253
The Morgengry and Blackcock [1900] P. 1
Townsend & Anor v Stone Toms & Partners (a firm) (1984) 27 BLR 26
Unicomb v Cairns [2009] FCA 988
Visbord v Federal Commissioner of Taxation (1943) 68 CLR 354
Walsh v Deputy Commissioner of Taxation (1984) 156 CLR 337

Applicant:

ROBERTSON HOMES (QLD) PTY LTD (ACN 070 034 874)

Respondent:

ROBERT JOHN TWIVEY

File Number:

BRG 953 of 2010

Judgment of:

Burnett FM

Hearing date:

15 December 2010

Delivered at:

Brisbane

Delivered on:

10 February 2011

REPRESENTATION

Counsel for the Applicant:

Mr Frigo

Solicitors for the Applicant:

Woods Hatcher

Counsel for the Respondent:

Mr Wilson

Solicitors for the Respondent:

Dillon Legal

ORDERS

Application dismissed.
That subject to any other application being made within seven days of the date of this order, the applicant pay the respondent’s costs of and incidental to the application to be assessed on 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.

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Details

Case: [2011] FMCA 69
Decision Date: 10 February 2011

CaseChat Overview and Summary

The parties involved in the case were Robertson Homes (Qld) Pty Ltd, the applicant, and Twivey, the respondent. The dispute arose out of a construction contract, and the matter was heard in the Queensland Supreme Court. The applicant sought an injunction to restrain the respondent from entering the construction site, as well as damages for breach of contract. The respondent opposed the application, arguing that the applicant had failed to establish the necessary grounds for an injunction and that the applicant's claim for damages was premature.

The legal issues before the court were whether the applicant had established the necessary grounds for an injunction and whether the applicant's claim for damages was premature. The court considered the principles of equity and the need for a balance between the rights of the parties in deciding whether to grant the injunction. The court also examined the nature of the breach and the remedies available under the contract in assessing the applicant's claim for damages.

The court found that the applicant had not established the necessary grounds for an injunction as it had not demonstrated that it would suffer irreparable harm if the injunction was not granted. The court also found that the applicant's claim for damages was premature as there was no final determination of the respondent's liability under the contract. The court dismissed the application and ordered that the applicant pay the respondent's costs of and incidental to the application.

Orders

Orders of the court

Application dismissed.

That subject to any other application being made within seven days of the date of this order, the applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.

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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