Superior Alignments Pty Ltd v Gounder - [2019] FCCA 1607

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUPERIOR ALIGNMENTS PTY LTD v GOUNDER

[2019] FCCA 1607

Catchwords:
BANKRUPTCY – Review of registrar’s decision – application dismissed.

Legislation:

Bankruptcy Act 1966, ss.44(1)(a), 52(2)(b)
Bankruptcy Regulations 1996, reg.16.01(1)(a)
Evidence Act 1995, s.160(1)

Cases cited:

Fancourt v Mercantile Credits Ltd [1983] HCA 25

Jensen v Queensland Law Society Inc [2004] FCA 655

T & S Recoveries Pty Ltd v Skalkos [2004] FCA 816

Applicant:

SUPERIOR ALIGNMENTS PTY LTD

Respondent:

SHOBNA KUMARI GOUNDER

File Number:

BRG 810 of 2018

Judgment of:

Judge Jarrett

Hearing date:

10 April 2019

Date of Last Submission:

10 April 2019

Delivered at:

Brisbane

Delivered on:

12 April 2019

REPRESENTATION

Solicitors for the Applicant:

Celtic Legal

The Respondent appeared in person

ORDERS

The application filed 25 October, 2018 be dismissed.
The applicant’s costs of the application be its costs in the respondent’s bankruptcy.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 810 of 2018

SUPERIOR ALIGNMENTS PTY LTD

Applicant

And

SHOBNA KUMARI GOUNDER

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of a registrar to grant a sequestration order against the estate of the respondent. The petition for her bankruptcy was filed some time ago now. In it the creditor alleged that a bankruptcy notice had been served on the respondent.
The bankruptcy notice relied upon a total judgment debt of $11,464.89. That was the sum of two judgments: a judgment given on 15 January, 2018 for $11,081.89 in action M55360 of 2017; and a second order that the debtor pay the petitioning creditor’s costs fixed in the sum of $383 in the same action. That order was made on 20 April, 2018. The latter order was made in connection with a failed attempt by the judgment debtor to have the judgment by default set aside.
The evidence reveals that the bankruptcy notice was served on the debtor. She was served by the document being sent to her in the post as permitted by reg.16.01(1)(a) of the Bankruptcy Regulations 1996. Service under that provision is taken to have occurred on the day when, in the due course of post, the posted article is taken to have been delivered at the address to which it was sent.
Section 160(1) of the Evidence Act 1995 provides that an article sent in the ordinary course of the post is taken to be received on the seventh working day after posting. Here, that was 7 May, 2018 and, so absent evidence to the contrary, the debtor is taken to have been served with the bankruptcy notice on 7 May, 2018. There is evidence of the posting, as I have said. The affidavit of service of the bankruptcy notice sworn by Eliza Puller and filed on 9 August, 2018 attests to that. There is no evidence of non-delivery.
One of the grounds for opposing the sequestration of her estate advanced by the debtor is that she did not receive the bankruptcy notice, i.e., she was, she says, not served with it. But…

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 Superior Alignments Pty Ltd v Gounder

Details

AGLC: Superior Alignments Pty Ltd v Gounder [2019] FCCA 1607
Case: [2019] FCCA 1607
Decision Date: 12 April 2019

CaseChat Overview and Summary

Superior Alignments Pty Ltd (the applicant) sought an order for specific performance of a contract for the sale of land against Mr. Gounder (the respondent). The dispute arose from the respondent's alleged repudiation of a contract for the sale of a property located at 140-142 Old Cleveland Road, Capalaba, Queensland. The applicant had paid a deposit and sought to enforce the sale, while the respondent contended that the contract was void due to a misrepresentation.

The primary legal issue before the court was whether the respondent was entitled to terminate the contract based on an alleged misrepresentation concerning the property's zoning and permitted uses. Specifically, the court had to determine if the applicant had made a misrepresentation, whether that misrepresentation was material, and if the respondent had validly rescinded the contract in reliance on it. The court also considered whether, even if a misrepresentation occurred, the applicant was still entitled to specific performance.

Judge Jarrett found that the applicant had not made any misrepresentation regarding the property's zoning or permitted uses. The court determined that the information provided by the applicant was accurate and that the respondent had ample opportunity to conduct his own due diligence. Consequently, the respondent's repudiation of the contract was not justified. The court applied the principles of contract law, including the requirements for a valid misrepresentation and the consequences of repudiation.

The court ordered specific performance of the contract, compelling the respondent to complete the sale of the property to the applicant. The respondent was also ordered to pay the applicant's costs of the proceeding.

Orders