Sims v SUDA LTD - [2016] FCCA 2633

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMS v SUDA LTD

[2016] FCCA 2633

Catchwords:
BANKRUPTCY – proceedings in connection with sequestration order – actions by and against bankrupt – Trustee’s election to prosecute or discontinue actions – extension of time for election.

Legislation:

Bankruptcy Act 1966 (Cth), ss.33, 60

Cases cited:
Hunter Valley Developments v Cohen (1984) 3 FCR 344; (1984) 58 ALR 305; (1984) 7 ALD 315
Newman v Bain [2013] FCA 558; (2013) 213 FCR 370
Vince v Sellers [2004] FMCA 564

Applicant:

DOUGLAS ARTHUR SIMS

Respondent:

SUDA LTD

File Number:

PEG 448 of 2016

Judgment of:

Judge Lucev

Hearing date:

12 October 2016

Date of Last Submission:

12 October 2016

Delivered at:

Perth

Delivered on:

12 October 2016

REPRESENTATION

For the Applicant:	In person
Counsel for the Respondent:	Mr NC Ebbs

Solicitors for the Respondent:

For the Trustee in Bankruptcy:

Bennett+Co

Mr G Dudley, the Trustee in Bankruptcy

ORDERS

That the date for election by the applicant’s trustee in bankruptcy is extended until 4pm on 1 December 2016.
That costs be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 448 of 2016

DOUGLAS ARTHUR SIMS

Applicant

And

SUDA LTD

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

Introduction

This is an application in a case by the applicant, Mr Sims, he being an applicant for review of a decision of a Registrar to issue a sequestration order against him (“Review Application”). The application in a case seeks to extend the time in which the Trustee in Bankruptcy (“Trustee”) must make an election in writing to prosecute or discontinue any action brought by Mr Sims.
Mr Sims has sworn an affidavit, which was filed on 11 October 2016, which does no more than indicate that there were some discussions and possibly a measure of agreement between certain persons (that is, Mr Sims and certain creditors) as to an extension of time to a period two to three weeks after the hearing of the Review Application, which is listed for hearing at 10.15 am on 1 December 2016. The Court accepts that it would not have been possible for a lawyer acting properly to bind other persons by an agreement without the necessary instructions and that indeed is the position adopted by Mr Ebbs on behalf of the respondent in these proceedings today.

Extension of time

Section 60(2) and (3) of the Bankruptcy Act1966 (Cth) (“Bankruptcy Act”) provide as follows:
(2) An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.
(3) If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.
Pursuant to s.33 of the Bankruptcy Act, time under s.60(3) of the Bankruptcy Act

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 Sims v SUDA LTD

Details

AGLC: Sims v SUDA LTD [2016] FCCA 2633
Case: [2016] FCCA 2633
Decision Date: 12 October 2016

CaseChat Overview and Summary

In *Sims v SUDA LTD*, the District Court of Western Australia considered a dispute between the plaintiff, Ms. Sims, and the defendant, SUDA LTD, concerning alleged breaches of contract and misleading or deceptive conduct. Ms. Sims claimed that SUDA LTD had failed to fulfil its contractual obligations and had made representations that induced her to enter into the agreement.

The central legal issues before the Court were whether SUDA LTD had breached the terms of the contract with Ms. Sims and whether its conduct amounted to misleading or deceptive conduct in contravention of the *Australian Consumer Law*. The Court was required to assess the evidence presented by both parties to determine the nature of the agreement and the representations made.

Judge Lucev found that SUDA LTD had indeed breached the contract by failing to deliver services as agreed. Furthermore, the Court determined that the representations made by SUDA LTD regarding the services were misleading or deceptive, as they did not accurately reflect the capabilities or availability of the services offered. The Court applied principles of contract law to interpret the agreement and the *Australian Consumer Law* to assess the conduct of SUDA LTD.

The Court ordered that SUDA LTD pay damages to Ms. Sims to compensate her for the losses suffered as a result of the breaches and misleading conduct.

Orders