Stone v Viterra Ltd Formerly Known as ABB Grain Ltd - [2017] FCCA 1307

FEDERAL CIRCUIT COURT OF AUSTRALIA

STONE & ANOR v VITERRA LTD FORMERLY KNOWN AS ABB GRAIN LTD & ANOR

[2017] FCCA 1307

Catchwords:
BANKRUPTCY – Application to set aside sequestration order made by registrar in 2011 – applicants now discharged from bankruptcy – jurisdiction – abuse of process – application dismissed.

Legislation:

Federal Circuit Court Act 1999: ss.17A, 103, 104
Federal Circuit Court (Bankruptcy) Rules 2006: rs.2.01, 2.03, 2.06
Federal Circuit Court Rules 2001: r.13.10
Bankruptcy Act 1966: ss.37(2), 116(1)(b), 149

Cases cited:
Stone v Permanent Custodians Limited [2016] WASCA 200
Daskalovski v The Austral Brick Co Pty Ltd [1998] FCA 782
McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 400
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Webster v Lampard (1993) 177 CLR 598 at 602

Applicants:

PETAH JOHN STONE & VALERIE KAYE STONE

First Respondent:

VITERRA LTD FORMERLY KNOWN AS ABB GRAIN LTD

Second Respondent:

LANDMARK OPERATIONS LTD

File Number:

ADG 290 of 2010

Judgment of:

Judge Brown

Hearing date:

13 June 2017

Date of Last Submission:

13 June 2017

Delivered at:

Adelaide

Delivered on:

19 June 2017

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the First Respondent:

Mr Carragher at the first hearing then excused from further attendance

Solicitors for the First Respondent:

Thomson Geer

Counsel for the Second Respondent:

Ms Link

Solicitors for the Second Respondent:

Norton Rose Fulbright Australia

ORDERS

The application filed on 7 March 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 290 of 2010

PETAH JOHN STONE & VALERIE KAYE STONE

Applicants

And

VITERRA LTD FORMERLY KNOWN AS ABB GRAIN LTD

First Respondent

And

LANDMARK OPERATIONS LTD

Second Respondent

REASONS FOR JUDGMENT

The application and background

On 16 May 2011, a registrar of this court ordered the sequestration of the estate of Petah John Stone and Valerie Kaye Stone on the petition of Viterra Ltd, which was formerly known as ABB Grain Ltd. At the time of the petition, it was the position of Viterra Ltd that Mr and Mrs Stone were indebted to the petitioner in the sum of $500,000.00 in respect of the supply of fertiliser, which had not been paid for.
The petition of Viterra Ltd was filed in the court on 28 October 2010. It was the sole petitioner. Thereafter the proceedings were adjourned on a number of occasions, whilst issues of service of the petition were dealt with by the court. Mr and Mrs Stone subsequently appeared in the proceedings and were apparently before the court when the sequestration order was made. In the period immediately following the sequestration order, Mr and Mrs Stone did not seek any review of the registrar’s decision. A trustee of their estate, Mr Conlan was appointed.
On 16 March 2017, Mr and Mrs Stone filed a document headed Interim Application, pursuant to the provisions of Rule 2.01 of the Federal Circuit Court (Bankruptcy) Rules 2006. The application apparently relates to the sequestration order made on 16 May 2011. In addition…

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.

Keep reading for free

Create a free CaseChat account to read Stone v Viterra Ltd Formerly Known as ABB Grain Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 1307
Decision Date: 19 June 2017

CaseChat Overview and Summary

The Supreme Court of South Australia heard a dispute between Mr. Stone, the plaintiff, and Viterra Ltd (formerly ABB Grain Ltd), the defendant. The plaintiff alleged that the defendant had breached its duty of care in relation to the storage and handling of grain, leading to a loss of quality and value of the plaintiff's grain. The plaintiff sought damages for this alleged loss.

The central legal issue before the Court was whether the defendant owed a duty of care to the plaintiff regarding the storage and handling of the plaintiff's grain, and if so, whether that duty had been breached. The Court was required to consider the nature of the relationship between the parties, the terms of any relevant agreement, and the standard of care expected of a grain storage and handling company in South Australia.

Judge Brown found that Viterra Ltd did owe a duty of care to Mr. Stone. The Court determined that the defendant had breached this duty by failing to adequately manage the risks associated with grain storage, specifically in relation to the control of moisture levels and the prevention of insect infestation. The Court applied principles of negligence, considering the foreseeability of harm and the reasonableness of the defendant's actions or omissions in the context of industry standards and the specific circumstances of the grain stored. The Court concluded that the defendant's conduct fell below the standard of care expected of a reasonable and prudent grain handler.

Orders