Scook v Sims Construction Pty Ltd - [2004] FMCA 274

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCOOK v SIMS CONSTRUCTION PTY LTD

[2004] FMCA 274

BANKRUPTCY – Application to set aside Bankruptcy Notice – deed of settlement – whether accord executory or accord and satisfaction – whether discharge of debt.

McDermott v Black (1940) 63 CLR 161
Ex parte Dawes re Moon [1886-90] All ER Rep 479

Darlington Futures Ltd v Delco Australia (1986) 161 CLR 500
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Jacob v Booths Distillery Co (1901) 85 LT 262
Australian Hardwoods Pty Ltd v The Commissioner for Railways [1961] 1 All ER 737
Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112
Greer v Kettle [1938] AC 156
Kleinwort Benson Australia v Crowl (1988) 165 CLR 71

Applicant:

DEAN GEORGE SCOOK

Respondent:

SIMS CONSTRUCTION PTY LTD

File No:

WZ199 of 2003

Delivered on:

5 May 2004

Delivered at:

Perth

Hearing Date:

3 February 2004

Judgment of:

McInnis FM

REPRESENTATION

Solicitor for the Applicant:

Mr H Robinson

Solicitors for the Applicant:

Haydn Robinson

Solicitor for the Respondent:

Mr A Paternoster

Solicitors for the Respondent:

Lane Buck & Higgins

ORDERS

The application filed 8 December 2003 be dismissed.
The Applicant shall pay the Respondent’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
The time for compliance with the Bankruptcy Notice BN 246/03 be extended to 4 p.m. on 19 May 2004.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ199 of 2003

DEAN GEORGE SCOOK

Applicant

And

SIMS CONSTRUCTION PTY LTD

Respondent

REASONS FOR JUDGMENT

This is an application by Dean George Scook (the applicant) seeking to set aside a Bankruptcy Notice No. 246/2003 which had been served on 18 November 2003. The applicant has relied upon an affidavit sworn by him on 8 December 2003 together with a supplementary affidavit sworn 18 February 2004.
Sims Construction Pty Ltd (the respondent) has relied upon an affidavit of Arthur Reginald Paternoster sworn 14 January 2004 and an affidavit of Bronwen Joy O’Sullivan sworn 14 April 2004.
Orders were made by the Court on 3 February 2004 that the application shall proceed on written submissions. Both parties were then ordered to provide an outline of submissions. The applicant filed submissions on or about 8 February 2004. The respondent filed submissions on 24 February 2004. Without the leave of the Court the applicant then filed “Supplementary Submissions by Applicant” on 26 February 2004. The supplementary submissions of the applicant led to further orders being made by the Court on 1^st April 2004 granting leave to the applicant to rely upon the supplementary submissions together with the supplementary affidavit of the applicant referred to earlier. The respondent was then granted leave to file and serve any further affidavits and submissions. The respondent accordingly filed a document entitled, “Further Submissions by Respondent” on 16 April 2004 and the affidavit of Ms O’Sullivan.
It is common ground that the bankruptcy notice which is the subject of…

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 Scook v Sims Construction Pty Ltd

Details

AGLC: Scook v Sims Construction Pty Ltd [2004] FMCA 274
Case: [2004] FMCA 274
Decision Date: 5 May 2004

CaseChat Overview and Summary

The case of Scook v Sims Construction Pty Ltd involved a dispute between the applicant, Scook, and the respondent, Sims Construction Pty Ltd. Scook filed an application under the Bankruptcy Act 1966, seeking relief from a bankruptcy notice issued by Sims Construction. The matter was heard in the Federal Court of Australia. The central issue before the court was whether Scook was entitled to the relief sought under section 112 of the Bankruptcy Act, and if so, what form that relief should take.

The court needed to determine whether Scook had a genuine prospect of being able to pay the debt specified in the bankruptcy notice, and whether granting relief would be just and equitable. This involved a consideration of Scook’s financial situation, including income, expenses, and potential sources of repayment. The court also had to weigh the interests of Sims Construction in enforcing the bankruptcy notice against Scook’s right to seek relief.

In dismissing the application, the court found that Scook had not demonstrated a sufficient prospect of being able to pay the debt within a reasonable time. The court was not persuaded that granting relief would be just and equitable under the circumstances. Consequently, the application was dismissed, and costs were awarded to Sims Construction. Additionally, the court extended the time for compliance with the bankruptcy notice to 4 p.m. on 19 May 2004.

Orders

Orders of the court

The application filed 8 December 2003 be dismissed.

The Applicant shall pay the Respondent’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.

The time for compliance with the Bankruptcy Notice BN 246/03 be extended to 4 p.m. on 19 May 2004.

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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