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…
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- AGLC
- SHARPE v HEYWOOD [2013] FCCA 1788
- Case
- [2013] FCCA 1788
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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