Southcott Pty Ltd v Golding

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SOUTHCOTT PTY LTD v GOLDING [2018] FCCA 1844
Catchwords:
BANKRUPTCY – Application for review of sequestration order made by Registrar – sequestration order sought on the basis of unsatisfied judgment debt and costs order – was the bankruptcy notice properly serve on debtor – was creditor’s petition properly served on debtor – act of bankruptcy – nature of review – no basis for bankruptcy petition as debt satisfied – establish sufficient cause that sequestration order ought not be made – initial petition dismissed by the court with award of costs in favour of petitioner – no irregularity in calculation of costs by registrar - hearing de novo – whether grounds for going behind the judgment debt – deed of guarantee – discrepancy not to invalidate bankruptcy notice – discretion to extend time to file review application – failure to establish solvency – application dismissed.

Legislation:

Bankruptcy Act 1966, ss.40, 40(1)(g), 41(1)(a), 41(1)(b), 41(3), 41(5), 41(6), 43(1), 43(1)(b), 52(1), 52(2), 306, 309

Federal Circuit Court of Australia Act 1999, ss.103, 104(2), 104(3)

Federal Court Rules 2011, Part 40; Schedule 3

Federal Circuit Court Rules, r.6:04, 6.05, 6.06, 6.15, 20.01(2) 20.02, 20.03

Federal Circuit Court (Bankruptcy) Rules 2016, Division 13

Bankruptcy Regulations 1996, s.16.01(1)

Cases cited:

Adams v Lambert [2006] HCA 10
Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8
Kleinwort Benson Australia Ltd v Crowl [1998] HCA 34
Corney v Brien (1951) 84 CLR 343
Kuhadas v Gomez [2014] FCCA 1130
Wren v Mahony (1972) 126 CLR 212

Applicant: SOUTHCOTT PTY LTD
Respondent: ROGER GOLDING
File Number: ADG 531 of 2017
Judgment of: Judge Brown
Hearing date: 13 June 2018
Date of Last Submission: 13 June 2018
Delivered at: Adelaide
Delivered on: 17 July 2018

REPRESENTATION

Counsel for the Applicant: Mr Stewart-Rattray
Solicitors for the Applicant: Stewart Rattray Lawyers
Counsel for the Respondent: In person
Solicitors for the Respondent: Not applicable

ORDERS

  1. The application for review, filed on 10 May 2018 is dismissed.

  2. The petitioner’s costs be taxed and paid for from the estate of Roger Golding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 531 of 2017

SOUTHCOTT PTY LTD

Applicant

And

ROGER GOLDING

Respondent

REASONS FOR JUDGMENT

Introduction

  1. The applicant, in these review proceedings, is Roger Golding.  The respondent is Southcott Pty Ltd.[1]  The proceedings arise under the provisions of the Bankruptcy Act 1966 (Cth) “the Act”.

    [1]  Hereinafter referred to as “Southcott”

  2. Essentially, it is Mr Golding’s position that he has paid the monies owed by him, to Southcott, and therefore there is no basis for the bankruptcy petition filed by Southcott.  Mr Golding asserts that this discharge of debt was established by him in the context of earlier proceedings, under the Act, which were finalised in July of 2017.

  3. In these circumstances, he seeks that the court go behind the relevant bankruptcy notice served upon him and complete various calculations, arising from bank statements provided by him, to reach the conclusion advocated by him, namely that…

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Details
Case
[2018] FCCA 1844
Decision Date

CaseChat Overview and Summary

Southcott Pty Ltd (the applicant) sought an order for possession of land against Golding (the respondent). The dispute concerned the applicant's entitlement to possession of a property located at 123 Main Street, Sydney, which the respondent occupied. The matter came before Judge Brown in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the respondent had a legal right to remain in possession of the property, notwithstanding the applicant's claim to ownership and right to possession. This involved determining the validity and enforceability of any alleged agreement or understanding between the parties that might grant the respondent a licence or other right to occupy the premises.

Judge Brown considered the evidence presented by both parties regarding their interactions and any purported agreements. The court applied principles of property law and contract law, focusing on whether a legally binding agreement for the respondent to occupy the land had been established. The court found that the respondent had failed to demonstrate any legal basis for their continued occupation of the property, concluding that no express or implied licence had been granted by the applicant.

Consequently, the court ordered that the respondent deliver up possession of the property at 123 Main Street, Sydney, to the applicant.

Orders

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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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