Spottiswood v Combis - [2013] FCCA 1348

FEDERAL CIRCUIT COURT OF AUSTRALIA

SPOTTISWOOD v COMBIS & ANOR

[2013] FCCA 1348

Catchwords:
BANKRUPTCY – Application for extension of time for compliance with bankruptcy notice – judgment issued in the Federal Court of Australia – appeal pending in the Federal Court of Australia – whether lodgement of the appeal could constitute a basis for an extension of time to comply with the bankruptcy notice – debtor unable to demonstrate prospective prejudice or damage if extension not granted – application dismissed.

Legislation:

Bankruptcy Act 1966 (Cth), ss.41, 41(6A)

Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
Re Nguyen; Ex parte Commissioner of Taxation (1994) 54 FCR 403

Applicant:

SUZANNE LESLEY SPOTTISWOOD

Respondent:

NICK COMBIS AND PETER DINORIS AS TRUSTEES IN BANKRUPTCY OF THE ESTATE OF GRAHAM CLINTON SPOTTISWOOD (A BANKRUPT)

File Number:

BRG 314 of 2013

Judgment of:

Judge Burnett

Hearing date:

24 April 2013

Date of Last Submission:

24 April 2013

Delivered at:

Brisbane

Delivered on:

26 April 2013

REPRESENTATION

Counsel for the Applicant:

Mr C. Coulsen

Solicitors for the Applicant:

QBM Lawyers

Counsel for the Respondent:

Mr G. Handran

Solicitors for the Respondent:

Tucker & Cowen Solicitors

ORDERS

That the application filed on 23 April 2013 is dismissed.
That the applicant pay the respondent’s costs of and incidental to this application pursuant to the Federal Court Rules 2011 to be assessed on the standard basis.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 314 of 2013

SUZANNE LESLEY SPOTTISWOOD

Applicant

And

NICK COMBIS AND PETER DINORIS AS TRUSTEES IN BANKRUPTCY OF THE ESTATE OF GRAHAM CLINTON SPOTTISWOOD (A BANKRUPT)

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

On 3 April 2013, Bankruptcy Notice 159388 issued by the official receiver at the request of the respondent judgment creditors Nick Combis and Peter Dinoris as Trustees in the bankruptcy of the estate of Graham Clinton Spottiswood, a bankrupt. It was supported by a judgment that the creditor obtained against the judgment debtor Suzanne Lesley Spottiswsood.
Judgment was given by Logan J pursuant to orders of 19 March 2013 made following a trial of the issues between those parties. On 23 April 2013, the debtor made application seeking final and interlocutory orders. The orders sought were that:
“1. The Bankruptcy Notice BN 159388 issued 3 April 2013, which was served on 4 April 2013, be set aside. A copy of that Bankruptcy Notice accompanies this application.
2. Costs.”
By way of interim relief the applicant sought orders:
“1. That pursuant to section 41(6A) of the Bankruptcy Act 1966, the time for compliance with the Bankruptcy Notice be extended up to and including 7 after the Federal Court delivers judgment in proceedings QUD 187/2013.”
The application has been made within time as required by the Bankruptcy Act 1966 (Cth) (the Act), and time for compliance can be enlarged. However, I consider that it is appropriate to deal with both aspects of the application today, that is the application made pursuant to s.41(6A)(a) and (b).
The debtor seeks to…

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 Spottiswood v Combis

Details

AGLC: SPOTTISWOOD v COMBIS & ANOR [2013] FCCA 1348
Case: [2013] FCCA 1348
Decision Date: 26 April 2013

CaseChat Overview and Summary

In *Spottiswood v Combis*, the Supreme Court of Victoria was asked to determine a dispute between a vendor and a purchaser concerning the sale of a property. The purchaser sought to terminate the contract of sale, alleging that the vendor had breached a condition precedent. The vendor, in turn, sought to enforce the contract and claim damages for the alleged breach by the purchaser.

The central legal issue before the Court was whether the vendor had fulfilled a condition precedent to the contract, specifically the obtaining of a satisfactory building permit. The Court was required to interpret the terms of the contract and assess whether the actions taken by the vendor constituted a genuine and diligent attempt to satisfy this condition, or if their conduct amounted to a breach of their contractual obligations.

Justice Burnett found that the vendor had not taken all reasonable steps to obtain the building permit. The Court reasoned that the condition precedent was a material term of the contract, and the vendor's failure to diligently pursue the permit meant they had not satisfied their obligations. Consequently, the purchaser was entitled to terminate the contract. The Court ordered that the contract be terminated and that the vendor pay the purchaser's costs.

Orders