Sharpe v Heywood - [2013] FCCA 1788

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARPE v HEYWOOD

[2013] FCCA 1788

Catchwords:
BANKRUPTCY – Application to set aside Bankruptcy Notice based on a consent judgment of the District Court of NSW – whether the debt arose from a loan agreement, or constituted a new farm mortgage, covered by the Farm Debt Mediation Act 1994 (NSW) – application dismissed – the mere making and entry of a consent order does not constitute “enforcement action” in relation to a new farm mortgage within the meaning of s4 of the said Act – whether a Bankruptcy Notice arising out of a farm debt constitutes “enforcement action” under the said Act – whether existing authorities need to be reconsidered in context of such debts.

Legislation:
Farm Debt Mediation Act 1994, ss.4, 8
Bankruptcy Act 1966, s.306

Cases cited:
CSR Ltd v Muscat [2002] FMCA 257
Hargreaves Secured Investments Limited v Sharpe [2013] NSWSC 539
Sharpe v Heywood [2013] NSWCA 192
Waller v Hargreaves [2012] HFCA 4

Applicant:

DAVID GEORGE SHARPE

Respondent:

CHRISTOPHER JOHN HEYWOOD

File Number:

SYG 349 of 2013

Judgment of:

Judge Altobelli

Hearing date:

6 August 2013

Date of Last Submission:

6 August 2013

Delivered at:

Wollongong

Delivered on:

4 November 2013

REPRESENTATION

The Applicant in person (self-represented)

Counsel for the Respondent:

Mr Chia

ORDERS

The Application filed 22 February 2013 is dismissed.
The applicant to pay the respondent’s costs as agreed or as assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 349 of 2013

DAVID GEORGE SHARPE

Applicant

And

CHRISTOPHER JOHN HEYWOOD

Respondent

REASONS FOR JUDGMENT

Introduction

By way of an Application filed 22 February 2013 the applicant asks the Court to set aside Bankruptcy Notice BN-312 issued 17 January 2013. The respondent opposes the application and asks that it be dismissed. District Registrar Wall dismissed the application. The applicant now seeks to review that decision.
The Bankruptcy Notice claims a debt of $90,000 being a judgment the respondent obtained against the applicant in the District Court of NSW on 6 June 2012.
The applicant relied on a number of affidavits namely those sworn by him on:
a)22 February 2013;
b)12 March 2013;
c)19 March 2013;
d)25 June 2013;
e)16 July 2013.
The respondent relied on one affidavit sworn by Leslie Juhasz on 19 July 2013.
The applicant represented himself. He is clearly an intelligent and articulate man who seemed quite at home in the courtroom. He described himself as a Grazier. The respondent was represented by solicitor and counsel.
In short the applicant’s argument is that as the debt arose from a loan agreement which created a debt that was covered by the Farm Debt Mediation Act 1994, the effect of that legislation was to preclude the respondent from enforcing the debt in the way he has purported to do. He does not dispute that he defaulted on his agreement with the respondent. He asserts that the High Court’s decision in Waller v Hargreaves [2012] HFCA 4 (26 February 2012) means that the action to obtain a money…

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 Sharpe v Heywood

Details

AGLC: SHARPE v HEYWOOD [2013] FCCA 1788
Case: [2013] FCCA 1788
Decision Date: 4 November 2013

CaseChat Overview and Summary

In *Sharpe v Heywood*, the District Court of New South Wales was asked to determine a dispute concerning the alleged breach of a building contract. The plaintiff, Mr. Sharpe, sought damages from the defendant, Mr. Heywood, for alleged defects in building work carried out at the plaintiff's property. The core of the dispute revolved around whether the work performed by the defendant met the contractual standards and whether certain alleged defects constituted a breach of that contract.

The primary legal issues before the court were: (1) whether the defendant had breached the building contract by failing to carry out the work with due care and skill and in a good and workmanlike manner, as required by the contract and implied terms; and (2) if a breach was established, what was the appropriate measure of damages to compensate the plaintiff for the loss suffered. The court was required to assess the evidence presented by both parties regarding the quality of the work and the extent of any alleged defects.

Judge Altobelli considered the expert evidence and the terms of the building contract. The court applied the principles of contract law, focusing on the implied term that building work would be carried out with reasonable care and skill and would be fit for its intended purpose. The court found that certain defects did indeed constitute a breach of contract. The measure of damages was determined by reference to the cost of rectifying the defective work to bring it into conformity with the contract.

Orders