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Smith v Wikramanayake

Smith v Wikramanayake

Case [2008] FMCA 1425 14 October 2008

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Civil Litigation & Procedure

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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

Application dismissed.
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

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.
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…

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 Smith v Wikramanayake

Details

AGLC: Smith v Wikramanayake [2008] FMCA 1425
Case: [2008] FMCA 1425
Decision Date: 14 October 2008

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

Application dismissed.

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

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Smith v Wikramanayake [2008] FMCA 1425

Most Recent Citation

Smith v Wikramanayake [2010] NSWDC 319

Cases citing this decision · 1 of 1 shown

Smith v Wikramanayake
[2010] NSWDC 319 Para 1

…There were proceedings between the parties in the Federal Magistrates Court: Smith v Wikramanayake [2008] FMCA 1425. Those proceedings resulted from Mr and Mrs Wikramanayake taking action to recover their costs and then issuing a Bankruptcy Notice. Those proceedings are on-going and have been apparently adjourned p…

View all 1 citing cases →

Cases cited in this decision · 15 of 15 shown

Massih v Esber
[2008] FCA 1452 Para 1

…ws expressed by Lindgren J in Re Glew; Glew v Harrowell [2003] FCA 373 at [9] and the commentary made upon that decision by Flick J in Massih v Esber [2008] FCA 1452 at [18] and [19].…
SZGME v Minister for Immigration and Citizenship
[2008] FCAFC 91 Para 4

…migration v SZANS (2005) 215 ALR 733 per Weinberg, Jacobson and Lander JJ at [38] and the authorities cited therein; SZGME v Minister for Immigration [2008] FCAFC 91 per Black CJ and Allsop J at [42]. It is suggested by the respondent that one point of difference between the instant case and that of Massih is the…
Snelgrove v Roskell
[2007] FCA 122 Para 3

…the judgment was registered. His Honour took the view, which he believed was consistent with decisions of the Federal Court in Snelgrove v Roskell [2007] FCA 122; Re Franks; Franks v Warringah Council [2003] FCA 1047 that: “[46] The result of the present Application, it is considered, can be stated simply. For t…
Esber v Massih
[2006] NSWSC 321 Para 2

…If there are no profits there is no cross claim. A right to profits (without more) would generally give rise to a liability for losses Esber v Massih [2006] NSWSC 321 at [6]. A number of questions arise in relation to the cross claim identified by Hammerschlag J.…
James v Hill
[2005] FMCA 743 Para 1

…r to calculate whether it alone (or it together with any other claim allowed) equalled or exceeded the amount of the judgment debt. In James v Hill [2005] FMCA 743 I dealt with a claim such as this where the costs had not been assessed and I said at [12]: “A claim of this type seems to be no different to a claim i…
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS
[2005] FCAFC 41 Para 4

…st instance is not binding on me it is one which I should follow unless I am satisfied that it is plainly wrong: see Minister for Immigration v SZANS (2005) 215 ALR 733 per Weinberg, Jacobson and Lander JJ at [38] and the authorities cited therein; SZGME v Minister for Immigration [2008] FCAFC 91 per Black CJ and All…
Franks v Warringah Council
[2003] FCA 1047 Para 3

…, which he believed was consistent with decisions of the Federal Court in Snelgrove v Roskell [2007] FCA 122; Re Franks; Franks v Warringah Council [2003] FCA 1047 that: “[46] The result of the present Application, it is considered, can be stated simply. For the purposes of the present Application, it was accepted…
Glew v Harrowell of Hunt & Hunt Lawyers
[2003] FCA 373 Para 1

…In coming to my conclusion as to the lack of satisfaction I have taken into account the views expressed by Lindgren J in Re Glew; Glew v Harrowell [2003] FCA 373 at [9] and the commentary made upon that decision by Flick J in Massih v Esber [2008] FCA 1452 at [18] and [19].…
Johnstone v Guss
[1998] FCA 117 Para 1

…as been entered for damages to be assessed. The court must therefore come to a view of the value of the claim based upon evidence provided to it. Johnstone v Guss (1997) 484 FCA Sundberg J.” In that case I had been provided with an affidavit from a solicitor indicating what he thought the quantum was. I found that there w…
Re Ling; Ex parte Ling v Commonwealth
[1995] FCA 532 Para 1

…t up" is thus to be determined by reference to legal considerations and not by reference to "practicalities": Re Ling; Ex parte Ling v Commonwealth (1995) 58 FCR 129 at 132.”…
Chesson v Smith
[1992] FCA 429 Para 5

…ory decisions; Re Gould; Ex parte Skinner (1983) 72 FLR 393 ( “Re Gould” ); Pollnow v Queensbrough Pty Limited (1988) 217 ALR 49; Chesson v Smith (1992) 35 FCR 594 ( “Chesson” ). The respondent before me sought to argue that these cases, which were determined before the Legal Profession Act provisions came into forc…
Re Willats, A.L. & Anor v Ex parte Nissan Finance Corporation Ltd
[1991] FCA 541 Para 6

…t the earliest opportunity. Mr Bolster says in his helpful written submissions: “[14]In this respect Re Willats; Ex parte Nissan Finance Corp Ltd (1991) 31 FCR 206 at 212 is authority for the proposition that: “ … the Act intends a debtor, at the earliest opportunity, to raise against his creditor such counterclaim,…
Quickenden v Federated Australian University Staff Association
[1988] FCA 365 Para 5

…generally have involved interlocutory decisions; Re Gould; Ex parte Skinner (1983) 72 FLR 393 ( “Re Gould” ); Pollnow v Queensbrough Pty Limited (1988) 217 ALR 49; Chesson v Smith (1992) 35 FCR 594 ( “Chesson” ). The respondent before me sought to argue that these cases, which were determined before the Legal Profe…
Re Gould; Ex parte Skinner
[1983] FCA 71 Para 5

…Cases in which the sub-section have been considered generally have involved interlocutory decisions; Re Gould; Ex parte Skinner (1983) 72 FLR 393 ( “Re Gould” ); Pollnow v Queensbrough Pty Limited (1988) 217 ALR 49; Chesson v Smith (1992) 35 FCR 594 ( “Chesson” ). The respondent before me sought to argue that these…
Port of Melbourne Authority v Anshun Pty Ltd
[1981] HCA 45 Para 1

…plaintiffs wished to prosecute a claim as envisaged in the proposed amendment, no Anshun (Port of Melbourne Authority v Anshun Proprietary Ltd (1981) 147 CLR 589) or issue estoppel or analogue point would be taken. 11Having regard to the forensic prejudice to the defendants, to the undertaking given, to the fact tha…

Legislation cited in this decision · 4

Bankruptcy Act 1966 (Cth)
40(1)(g), 41(7) 3 mentions (from Para 2)
Conveyancing Act 1919 (ACT)
1 mention (from Para 2)
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)
1 mention (from Para 2)
Legal Profession Act 1987 (NSW)
1 mention (from Para 2)