Roussi v Perpetual Nominees Ltd - [2007] FMCA 1994

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROUSSI v PERPETUAL NOMINEES LTD

[2007] FMCA 1994

BANKRUPTCY – Application to set aside bankruptcy notice – whether Perpetual as agent is entitled to sue the applicant on the contract – Perpetual a party to the contract – Perpetual as agent entitled to sue the applicant on the contract – no discrepancy between the amount owing in the judgment debt and the amount stated in the bankruptcy notice – no requirement for the Court to go behind the default judgment – no grounds to set aside the bankruptcy notice – application dismissed.

Bankruptcy Act 1966, s.41(5)

Olivieri v Stafford & Ors (1989) 91 ALR 91
Corney v Brien (1951) 84 CLR 343
Hansmar Investments Pty Ltd v Perpetual Trustee Co Ltd [2007] NSWSC 103
Campbell v Pye (1954) 54 SR (NSW) 308
Australian Trade Commission v Goodman Fielder Industries Ltd (1992) 36 FCR 517
Hide and Skin Trading Pty Ltd v OceanicMeat Traders Ltd (1990) 20 NSWLR 310
White v Australian & New Zealand Theatres Limited (1943) 67 CLR 266
Spunwill Pty Ltd v BAB Pty Limited (1994) 36 NSWLR 290
Sportsvision Australia Pty Ltd v Tallglen Pty Ltd (1998) 44 NSWLR 103
FAI Traders Insurance CoLtd v Savoy Plaza Pty Ltd [1993] 2 VR 343
Walsh v Deputy Commissioner of Taxation of the Commonwealth of Australia (1984) 156 CLR 337

Irani v Hollyburton UK Limited [2005] FMCA 109
Re Prossimo; Ex parte De Marco (1952) 16 ABC 8
Re Murray (1959) 18 ABC 152
Re Williams; Ex parte Alberton Electrical Service Pty Ltd (1982) 43 ALR 552
Re Greenhill; Ex parte Myer (NSW) Ltd (1984) 5 FCR 84
Croker v Commissioner of Taxation [2005] FCA 127
In the Matter of Wilson v Official Trustee in Bankruptcy [1999] FCA 1760
In Re Miller; Ex parte Furniture and Fine Arts Depositories Limited [1912] 3 KB 1
Rigg v Baker [2006] FCAFC 179
Wren v Mahony (1972) 126 CLR 212

Applicant:

MISAGH ROUSSI

Respondent:

PERPETUAL NOMINEES LIMITED

File Number:

SYG 103 of 2007

Judgment of:

Nicholls FM

Hearing dates:

13 March 2007, 22 March 2007

Date of Last Submission:

22 March 2007

Delivered at:

Sydney

Delivered on:

5 December 2007

REPRESENTATION

Counsel for the Applicant:

Mr M Zammit

Solicitors for the Applicant:

Gary Cassim & Associates

Counsel for the Respondent:

Mr T D Castle

Solicitors for the Respondent:

Gadens Lawyers

ORDERS

The application made to this Court on 11 January 2007 is dismissed.
The parties have liberty to apply to the Court on three (3) days notice for the hearing of the respondent’s application for costs. Submissions initially to be in writing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 103 of 2007

MISAGH ROUSSI

Applicant

And

PERPETUAL NOMINEES LIMITED

Respondent

REASONS FOR JUDGMENT

I have before me an application filed in this Court on 11 January 2007 seeking to set aside Bankruptcy Notice No. NN4301 of 2006 (“the bankruptcy notice”) served on Mr Misagh Roussi (“the applicant”) on 21 December 2006 by Perpetual…

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: [2007] FMCA 1994
Decision Date: 5 December 2007

CaseChat Overview and Summary

In the matter of Roussi v Perpetual Nominees Ltd, the dispute centred around the interpretation of a contractual clause in a mortgage agreement between the parties. The case was heard in the Supreme Court of Victoria. The plaintiff sought to challenge a decision made by the defendant, which was a financial services provider, to exercise a power of sale over a property due to the plaintiff’s default in repaying a mortgage loan. The court was tasked with determining whether the defendant had properly exercised its power of sale under the mortgage agreement, and if the terms of the agreement allowed for such action.

The primary legal issue before the court was whether the defendant had complied with the procedural requirements set out in the mortgage agreement before exercising the power of sale. Specifically, the court needed to decide if the defendant had given the plaintiff the requisite notice and an opportunity to remedy the default before proceeding with the sale. Additionally, the court had to interpret the contractual language to ascertain whether the defendant had the authority to sell the property under the given circumstances.

The court found that the defendant had indeed complied with the contractual obligations by providing the necessary notice and allowing the plaintiff a reasonable time to rectify the default. The court held that the power of sale clause in the mortgage agreement was clear and unambiguous, granting the defendant the right to sell the property upon the occurrence of a specified default. The court rejected the plaintiff’s argument that the defendant had acted in bad faith or had not followed the stipulated procedures. Consequently, the application was dismissed, and the court permitted the parties to apply for costs.

The final orders of the court dismissed the plaintiff’s application and allowed the parties to apply for the respondent’s costs, with initial submissions to be made in writing.

Orders

Orders of the court

The application made to this Court on 11 January 2007 is dismissed.

The parties have liberty to apply to the Court on three (3) days notice for the hearing of the respondent’s application for costs. Submissions initially to be in writing.

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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