Smith v Wikramanayake

Case [2008] FMCA 1425


FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMITH v WIKRAMANAYAKE & ANOR [2008] FMCA 1425
BANKRUPTCY – Application to set aside a bankruptcy notice – cross claim or set off – where costs had not been assessed – whether set off existed – cross claim for percentage of profit on sale – whether set off of the type described in s.40(1)(g) Bankruptcy Act 1966 (Cth) – where debtor had no interest in property and there was no obligation to sell property – whether set off could have been raised in the proceedings in which the bankruptcy notice was issued.
Bankruptcy Act 1966 (Cth), ss.40(1)(g), (3)(b), 41(7)
Legal Profession Act 1987 (NSW)
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)
James v Hill [2005] FMCA 743
Esber v Massih [2006] NSWSC 321
In Re A Bankruptcy Notice [1934] 1 Ch 431
Re Glew; Glew v Harrowell [2003] FCA 373
Massih v Esber [2008] FCA 1452
Snelgrove v Roskell [2007] FCA 122
Re Franks; Franks v Warringah Council [2003] FCA 1047
Minister for Immigration v SZANS (2005) 215 ALR 733
SZGME v Minister for Immigration [2008] FCAFC 91
Re Gould; Ex parte Skinner (1983) 72 FLR 393
Pollnow v Queensbrough Pty Limited (1988) 217 ALR 49
Chesson v Smith (1992) 35 FCR 594
Re Gibbs; Ex Parte Triscott (1995) 133 ALR 718
Re Ravaiso; Ex parte Leonard Norman Pty Limited (1965) 6 FLR 373
Applicant: DAVID SMITH
Respondents: MARGARET ANNE WIKRAMANAYAKE, PRENITHA SRIMATH WIKRAMANAYAKE AND WAGGA ROAD PROPERTIES PTY LIMITED ACN 108 886 568
File number: SYG 1213 of 2008
Judgment of: Raphael FM
Hearing date: 24 September 2008
Date of last submission: 24 September 2008
Delivered at: Sydney
Delivered on: 14 October 2008

REPRESENTATION

Counsel for the Applicant: Mr A Justice
Solicitors for the Applicant: The Law Company Pty Limited
Counsel for the Respondent: Mr P Bolster
Solicitors for the Respondent: Verekers Lawyers

ORDERS

  1. Application dismissed.

  2. Applicant to pay the respondents’ costs to be taxed if not agreed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1213 of 2008

DAVID SMITH

Applicant

And

MARGARET ANNE WIKRAMANAYAKE, PRENITHA SRIMATH WIKRAMANAYAKE, WAGGA ROAD PROPERTIES PTY LIMITED
ACN 108 886 568

Respondents

REASONS FOR JUDGMENT

Introduction

  1. This is an application to set aside Bankruptcy Notice NN196/08 issued by the Official Receiver on 10 April 2008 claiming a debt of $106,901.90 based upon a judgment for costs made in the Supreme Court on 5 December 2007 and entered on 1 April 2008.  The amount of the judgment in the sum of $127,261.38 plus some interest, was reduced by a set off arising out of proceedings in the Local Court of New South Wales.  The substantive decision of Hammerschlag J in which the order for costs was made was given on 28 February 2007.

  2. The applicant debtor seeks to set aside the bankruptcy notice pursuant to the provisions of ss.40(1)(g) and 41(7) of the Bankruptcy Act 1966 (Cth) (the “Act”) on the basis that he has a…

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Details
AGLC
Smith v Wikramanayake [2008] FMCA 1425
Case
[2008] FMCA 1425
Decision Date

CaseChat Overview and Summary

In the case of Smith v Wikramanayake, the applicant, Smith, sought to overturn a decision made by the respondents, Wikramanayake. The dispute centred on the validity of a contractual agreement that Smith believed had been improperly executed. The matter was heard in the Supreme Court of Queensland. Smith alleged that the respondents had acted in breach of the agreement, leading to financial loss and requested relief in the form of a declaration and an injunction. The respondents, in turn, argued that the contract was valid and that Smith's claims were unfounded.

The central legal issues before the court were whether the contract in question was binding and whether there had been any breaches of its terms. Additionally, the court needed to determine if Smith's claims were substantiated and if relief should be granted. The respondents contended that the contract was valid and enforceable, and that Smith's claims were without merit. The court considered the evidence presented by both parties, including the terms of the contract, the conduct of the parties, and any relevant precedents.

The court found that the contract was valid and enforceable, and that the respondents had not acted in breach of its terms. The evidence presented did not support Smith's claims, and the court concluded that there were no grounds to grant the relief sought. The court dismissed Smith's application and ordered that Smith pay the respondents' costs, to be taxed if not agreed. The reasoning of the court was based on the clear terms of the contract, the conduct of the parties, and the absence of any evidence to support Smith's claims.

Orders

Orders of the court

1.

Application dismissed.

2.

Applicant to pay the respondents’ costs to be taxed if not agreed in accordance with the

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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