Southcott Pty Ltd v Golding - [2018] FCCA 1844

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

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

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”
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.
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…

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.

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Details

Case: [2018] FCCA 1844
Decision Date: 17 July 2018

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