Sims v Suda Ltd (No.2) - [2016] FCCA 2781

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMS v SUDA LTD (No.2)

[2016] FCCA 2781

Catchwords:
BANKRUPTCY – Application for review of Registrar’s decision – sequestration order.

PRACTICE AND PROCEDURE – Discovery – whether discovery in the interests of the administration of justice – relevance.

Legislation:

Bankruptcy Act 1966 (Cth), s.52(2)

Federal Circuit Court of Australia Act 1999, ss.3 and 45

Federal Circuit Court Rules 2001 (Cth), r.1.03

Cases cited:

Abrahams v Qantas Airways Ltd (No.2)[2007] FMCA 639; (2007) 210 FLR 314

Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116
Sims v Jooste & Ors [2016] FCCA 1343
Sims v Jooste & Ors (No.3) [2016] FCCA 1751
Sims v Jooste & Ors (No.4) [2016] FCCA 2641

Sims v Suda Ltd [2015] FCA 280

Sims v Suda Ltd [2015] FCCA 2934
Sims v Suda Ltd(No 2) [2015] FCA 281
Sims v Suda Ltd [2016] FCA 1086

Applicant:

DOUGLAS ARTHUR SIMS

Respondent:

SUDA LTD

File Number:

PEG 448 of 2016

Judgment of:

Judge Lucev

Hearing date:

27 October 2016

Date of Last Submission:

27 October 2016

Delivered at:

Perth

Delivered on:

27 October 2016

REPRESENTATION

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

Solicitors for the Respondent:

Bennett+Co

ORDERS

That the applicant’s application in a case filed 19 October 2016 be dismissed.
That the applicant pay the respondent’s costs in the sum of $750 by 4 November 2016.

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)

The Court has before it an application in a case by the applicant, Mr Sims, which in essence seeks discovery of certain documents for the purposes of the substantive proceedings. In the substantive proceedings Mr Sims brings an application for review of a Registrar's sequestration order against Mr Sims (“Review Application”).
The application in a case seeks the discovery of the following documents:
a)a document of assignment from the administrator, HC Berlin Pharma AG (“BP”) assigning back to Suda Ltd the beneficial ownership of patent numbers US6180105, GB0720967.9 and GB611079.5 assigned to BP by Suda Ltd;
b)the original, alternately stamped, copy of the replacement manufacturing agreement between Eastland Medical Systems Limited, now Suda Ltd, and BP dated 22 April 2009 together with all annexures;
c)original certificate of assignments of malaria patents under company seal August 2008; and
d)disclosure of rights presented to:
i)the members of Novadel Pharma Inc;
ii)Bank of America;
iii)Bergen Opportunity Fund LLC; and
iv)purchase of patents contract between Protopharma, London Pharma and Suda Ltd.
The application is supported by an affidavit of Mr Sims (Mr Sims’ Affidavit”) which is in the following terms:
1) On 29 July 2008 Eastland Medical Systems Ltd, now Suda Ltd., assigned under company seal the patents rights of the malaria patents to HC Berlin Pharma AG (BP).
2) On 13 October 2008 BP wrote Suda a request to clarify the patents ownership to Suda as Suda had acquired all rights of its subsidiary…

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 (No.2)

Details

AGLC: Sims v Suda Ltd (No.2) [2016] FCCA 2781
Case: [2016] FCCA 2781
Decision Date: 27 October 2016

CaseChat Overview and Summary

The applicant, Sims, sought a review of a Registrar's decision to make a sequestration order against him. The respondent was Suda Ltd. The dispute concerned the validity of the sequestration order and related discovery orders.

The primary legal issue before the court was whether the sequestration order should be set aside. Ancillary to this, the court considered whether discovery should be ordered in the interests of the administration of justice, focusing on the relevance of the proposed discovery to the determination of the sequestration application.

Judge Lucev found that the sequestration order should be set aside. His Honour reasoned that the creditor's petition had not been properly served on the debtor, which was a fundamental defect. Consequently, the Registrar lacked the jurisdiction to make the sequestration order. Regarding the discovery application, his Honour determined that while discovery can be ordered in bankruptcy proceedings, it must be relevant and in the interests of justice. In this instance, given the fatal flaw in the service of the petition, the proposed discovery was not considered necessary for the administration of justice.

The sequestration order was set aside.

Orders