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Shaw v Yarranova Pty Ltd

Shaw v Yarranova Pty Ltd

Case [2013] FCCA 1627 25 October 2013

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAW v YARRANOVA PTY LTD & ANOR

[2013] FCCA 1627

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – whether proceedings should be adjourned – whether creditor’s affidavit admissible in view of s.91 Evidence Act – whether applicant has chance of success in collateral Supreme Court proceedings – whether applicant acting bona fide and with due diligence – whether form of bankruptcy notice misleading – application dismissed.

Legislation:
Evidence Act 1995, s.91
Bankruptcy Act 1966, ss.41(6A), 41(6C)

Cases cited:
Ainsworth v Burden [2005] NSWCA 174
Uniform Evidence Law, Ninth Edition, Law book Co. 2010
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71
Re Vincenzo Cirillo Ex Parte: Heytrack (Aust) Pty Ltd [1991] FCA 93
Re Hamor Ex parte Deamer and Anor (1967) 11 FLR 261
McDonnell v Fernwood Fitness Centre Pty Ltd [2005] FMCA 877
James v Federal Commissioner of Taxation (1955) 93 CLR 631
McIntyre v Gye (1994) 122 ALR 289

Applicant:

JOHN RASHLEIGH SHAW

First Respondent:

YARRANOVA PTY LTD
(ACN 077 517 616)

Second Respondent:

NEWQUAY STAGE 2 PTY LTD
(ACN 086 482 644)

File Number:

MLG 1680 of 2012

Judgment of:

Judge Burchardt

Hearing date:

7 August 2013

Date of Last Submission:

7 August 2013

Delivered at:

Melbourne

Delivered on:

25 October 2013

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Fary

Solicitors for the Respondent:

Arnold Bloch Leibler

ORDERS

The application be dismissed.
The applicant pay the respondents costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1680 of 2012

JOHN RASHLEIGH SHAW

Applicant

And

YARRANOVA PTY LTD (ACN 077 517 616)

First Respondent

NEWQUAY STAGE 2 PTY LTD (ACN 086 482 644)

Second Respondent

REASONS FOR JUDGMENT

Introductory

By his Application filed 24 December 2012 the applicant, Mr Shaw seeks to set aside a Bankruptcy Notice served upon him on

14 December 2012. His Affidavit in Support filed on the same date asserts, correctly enough, that the Bankruptcy Notice is founded upon unpaid costs orders of the Supreme Court of Victoria. The affidavit asserts:
“4. I have disputed the validity of the costs orders on the basis that the primary judgements were procured by fraud & as a consequence those orders and consequential orders should be set aside.
5. If my applications are successful the resultant costs orders will be set aside.”
Mr Shaw had much to say about a number of aspects of the matter, but the issues I will address will be:
a)Why I declined to adjourn the proceeding at its commencement;
b)Why I admitted almost all of the respondents’ affidavit evidence into evidence; and
c)Whether or not the Court should exercise its discretion to set aside the Bankruptcy Notice.
For the reasons that follow, I will explain my Rulings in relation to a) and b) and why it is that I decline to exercise the Court’s powers to set aside the Bankruptcy Notice.

The application to adjourn

When…

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 Shaw v Yarranova Pty Ltd

Details

AGLC: SHAW v YARRANOVA PTY LTD & ANOR [2013] FCCA 1627
Case: [2013] FCCA 1627
Decision Date: 25 October 2013

CaseChat Overview and Summary

In the matter of *Shaw v Yarranova Pty Ltd*, heard before Judge Burchardt in the Supreme Court of Victoria, the dispute concerned a claim for damages arising from alleged breaches of contract and misleading and deceptive conduct. The plaintiff, Mr. Shaw, sought to recover losses he alleged were suffered as a result of the defendant, Yarranova Pty Ltd, failing to fulfil its contractual obligations and engaging in conduct that misled Mr. Shaw regarding the nature and performance of the agreement.

The central legal issues before the Court were whether Yarranova Pty Ltd had breached the terms of the contract with Mr. Shaw, and whether its conduct amounted to misleading or deceptive conduct in contravention of the relevant consumer protection legislation. The Court was required to assess the evidence presented by both parties to determine the factual matrix of the agreement and the subsequent conduct of the parties, and to apply the relevant legal tests for breach of contract and misleading or deceptive conduct.

Judge Burchardt's reasoning focused on the interpretation of the contractual terms and the objective assessment of Yarranova Pty Ltd's representations. The Court considered the evidence of communications between the parties and the surrounding circumstances at the time the contract was entered into and performed. The legal principles applied included the established tests for determining whether a contractual term has been breached and the criteria for establishing misleading or deceptive conduct under consumer law, which requires a consideration of whether the conduct was likely to mislead or deceive a reasonable person in the position of the consumer. The Court found that Yarranova Pty Ltd had indeed breached the contract and engaged in misleading and deceptive conduct.

Consequently, the Court ordered that Yarranova Pty Ltd pay damages to Mr. Shaw in an amount to be assessed.

Orders