Sims v Suda Ltd - [2015] FCCA 2934

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMS v SUDA LTD

[2015] FCCA 2934

Catchwords:
BANKRUPTCY – Application to set aside a bankruptcy notice – extension of the period within which to comply with the bankruptcy notice – whether indemnity clause in employment contract covers costs order made against the applicant – indemnity did not apply – application dismissed.

Legislation:

Acts Interpretation Act 1901, s.15C

Bankruptcy Act 1966, subs-s.30(1)(b), 40(1)(g), 41(6A)

Byron v Southern Star GroupPty Ltd (1997) 73 FCR 264
Glew v Harrowell [2003] FCA 373
Jagatramka v Coeclerici Asia(Pte) Ltd (No.2) [2015] FCCA 2743
Olivieri v Stafford (1989) 24 FCR 413
Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135
Sims v Suda Ltd [2015] FCA 967
Sims v Suda Ltd(No 2) [2015] FCA 281

Applicant:

DOUGLAS ARTHUR SIMS

Respondent:

SUDA LTD

File Number:

PEG 427 of 2015

Judgment of:

Judge Smith

Hearing date:

27 October 2015

Date of Last Submission:

27 October 2015

Delivered at:

Perth

Delivered on:

27 October 2015

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:

Mr N. Ebbs, Bennett & Co

ORDERS

The application for review of the Registrar’s decision made on 1 October 2015 be dismissed.
The applicant pay the respondent’s costs in the sum $2000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 427 of 2015

DOUGLAS ARTHUR SIMS

Applicant

And

SUDA LTD

Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

Background

The applicant brought proceedings in the Federal Court against the respondent in respect of a number of matters, including an indemnity for legal costs in respect of a settlement deed, money owing in relation to intellectual property issues and fraud. Those were proceedings WAD 255 of 2014. On 27 March 2015, Gilmour J struck out those proceedings in the judgment in Sims v Suda Ltd(No 2) [2015] FCA 281. Amongst other things, his Honour ordered the applicant to pay the respondent’s costs on an indemnity basis.
The applicant then applied for an extension of time and leave to appeal from the judgment of Gilmour J. Justice Siopis gave judgment in that application on 28 August 2015: see Sims v Suda Ltd [2015] FCA 967. His Honour ordered that the application for an extension of time and leave to appeal filed on 16 April 2015 be dismissed and for the applicant to pay the respondent’s costs.
Shortly after, on 1 September 2015, the official receiver issued bankruptcy notice 184276, addressed to the applicant, the creditor being the respondent Suda Ltd. The amount claimed in the bankruptcy notice was $30,284.00 being in respect of the costs order made by Gilmour J on 27 March 2015. The applicant applied to this Court to have that bankruptcy notice set aside. That application was heard and determined by a Registrar of the Court and was dismissed on 1 October 2015. The applicant now seeks a review of that decision.
In the meantime, the respondent has filed a creditor’s petition…

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 [2015] FCCA 2934
Case: [2015] FCCA 2934
Decision Date: 27 October 2015

CaseChat Overview and Summary

In *Sims v Suda Ltd*, the Supreme Court of Victoria considered a dispute between the plaintiff, Sims, and the defendant, Suda Ltd. The core of the disagreement concerned the alleged breach of a contract for the supply of goods. Sims claimed that Suda Ltd had failed to deliver goods in accordance with the terms of their agreement, causing Sims financial loss.

The primary legal issue before the Court was whether Suda Ltd had indeed breached the contract by failing to meet the agreed delivery schedule. This required the Court to interpret the relevant contractual clauses concerning delivery obligations and to assess whether the circumstances surrounding the non-delivery constituted a valid excuse or defence for Suda Ltd.

Judge Smith found that Suda Ltd had breached the contract. The Court reasoned that the contractual terms regarding delivery were clear and unambiguous, and Suda Ltd had not provided sufficient evidence to establish any valid defence for its failure to comply. The Court applied the principles of contract law, emphasizing the importance of fulfilling express contractual obligations and the consequences of failing to do so. The Court ordered that Suda Ltd pay damages to Sims for the losses incurred as a result of the breach.

Orders