Scook v Sims Construction Pty Ltd

[2004] FCAFC 306

FEDERAL COURT OF AUSTRALIA

Scook v Sims Construction Pty Ltd [2004] FCAFC 306

BANKRUPTCY – appeal – bankruptcy notice based on consent judgment – whether Federal Magistrate in error of law in construing deed of settlement as an accord executory and not an accord and satisfaction of the judgment – provision for forfeiture of shares by third parties - relevance of context

BANKRUPTCY – appeal – bankruptcy notice – invalidity - notice given by one of several joint creditors

Black’s Law Dictionary 7^th edn

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 cited
Australian Hardwoods Pty Ltd v Commissioner for Railways [1961] 1 All ER 737 cited
Australian Workers’ Union v Bowen (1946) 72 CLR 575 applied
Dudzinski v Kellow [2003] FCAFC 207 followed
McDermott v Black (1940) 63 CLR 161 considered

DEAN GEORGE SCOOK v SIMS CONSTRUCTION PTY LTD
W109 OF 2004

RD NICHOLSON, JACOBSON and BENNETT JJ
18 NOVEMBER 2004
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W109 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	DEAN GEORGE SCOOK APPELLANT
AND:	SIMS CONSTRUCTION PTY LTD RESPONDENT
JUDGES:	RD NICHOLSON, JACOBSON and BENNETT JJ
DATE OF ORDER:	18 NOVEMBER 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.   The appeal be allowed.

2.   The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W109 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	DEAN GEORGE SCOOK APPELLANT
AND:	SIMS CONSTRUCTION PTY LTD RESPONDENT

JUDGES:	RD NICHOLSON, JACOBSON and BENNETT JJ
DATE:	18 NOVEMBER 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT

1. This is an appeal from the judgment of a Federal Magistrate given on 5 May 2004 (Scook v Sims Construction Pty Ltd [2004] FMCA 274). The judgment dismissed an application by the appellant to set aside a bankruptcy notice which had been served on 18 November 2003.

2. At the commencement of the hearing of the appeal, counsel for the appellant sought to raise a contention not included in the appellant’s notice of appeal.  At the conclusion of argument on the notice of appeal as it stood the Court adjourned to provide to counsel for the respondent the opportunity to consider the proposed additional ground.  On resumption counsel for the respondent did not oppose the addition of the ground.  Orders were made granting leave to the appellant to add the ground provided that the respondent did not give a written notice of any opposition to such addition within 24 hours.  No such notice was received.  Accordingly the leave became absolute.  The new ground reads:

   ‘1A.The bankruptcy notice was invalid due to the notice being issued by one but not all of the joint creditors.’

   It was agreed by the appellant’s counsel that in the event the appeal was determined in favour of the…