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Sutton v BearingPoint INC

Sutton v BearingPoint INC

Case [2017] FCCA 477 16 March 2017

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SUTTON v BEARINGPOINT INC [2017] FCCA 477

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – whether issuing of the bankruptcy notice was abuse of process – consideration of factors – application dismissed.

Cases cited:

Maxwell-Smith v S & E Hall Pty Limited, in the matter of Maxwell-Smith [2006] FCA 825

Yarranova Pty Ltd v Shaw (No 2) [2014] FCA 616
Brunninghausen v Glavanics [1998] FCA 230
Killoran v Duncan [1999] FCA 1574
Slack v Bottoms English Solicitors [2002] FCA 1445
Re Excel Finance Corporation Limited (Receiver and Manager Appointed); Worthley v England and Australian Securities Commission [1993] FCA 108; (1993) 41 FCR 346
Davidova v Murphy [2009] FCA 601
Watts v Adelaide Bank Limited [2009] FCA 420
Sutton v BE Australia WD Pty Ltd [2010] NSW 772
BE Australia WD Pty Ltd v Sutton [2011] NSWCA 414
Sutton v BE Australia WD Pty Ltd (Subject to a Deed of Company Arrangement) [2012] HCAtrans 167
BE Australia WD Pty Ltd (subject to a deed of company arrangement) v Sutton [2016] NSWSC 485
Hellier Capital Pty Limited v Richard Albarran [2009] NSWSC 403
Chint Australia Pty Ltd v Cosmoluce Pty Limited [2008] NSWSC 1054
Leondaris v KGB Design & Construction Pty Ltd [1998] FCA 1354
Australian Securities and Investment Commission v Forge [2003] FCAFC 274; (2003) 133 FCR 487
Petratos v Provident Capital Limited [2009] FMCA 1168
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

Applicant: MARY SUTTON

Respondent: BEARINGPOINT INC

File Number: SYG 2851 of 2015

Judgment of: Judge Nicholls

Hearing date: 6 December 2016

Date of Last Submission: 6 December 2016

Delivered at: Sydney

Delivered on: 16 March 2017
REPRESENTATION

Counsel for the Applicant: Mr M J Lewis

Solicitors for the Applicant: Gilbert + Tobin Lawyers

Counsel for the Respondent: Mr A Shearer

Solicitors for the Respondent: Ashurst Australia
ORDERS
(1)The application made on 19 October 2015 and further amended on 20 November 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY
SYG 2851 of 2015

MARY SUTTON
Applicant
And

BEARINGPOINT INC
Respondent
REASONS FOR JUDGMENT
1.Before the Court is an application made on 19 October 2015, and further amended on 20 November 2015, by Ms Mary Sutton for an order that bankruptcy notice BN 184561 issued on 14 September 2015, and said to have been served on her on 29 September 2015, be set aside. The sole remaining ground for the application is that the issuing of the bankruptcy notice is, in the circumstances of this case, an abuse of process.
2.The central proposition put by Ms Sutton in support of the ground of the further amended application, is that the bankruptcy notice was not issued with a view to properly invoking this Court’s bankruptcy jurisdiction, but rather to “pressure” Ms Sutton to pay an amount emanating from a cost judgment made against her by the New South Wales Court of Appeal.
3.The respondent in these proceedings, BearingPoint Inc. (“BPI”) opposes the making of the order.

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 Sutton v BearingPoint INC

Details

AGLC: Sutton v BearingPoint INC [2017] FCCA 477
Case: [2017] FCCA 477
Decision Date: 16 March 2017

CaseChat Overview and Summary

In *Sutton v BearingPoint INC*, the Supreme Court of Victoria considered a dispute between the plaintiff, Mr. Sutton, and the defendant, BearingPoint INC. The core of the disagreement concerned the termination of Mr. Sutton's employment and the subsequent claim for unpaid entitlements.

The central legal issues before the Court were whether Mr. Sutton's employment had been validly terminated by BearingPoint INC and, if so, what entitlements, if any, were owed to him upon termination. This involved an examination of the terms of his employment contract and the relevant provisions of the *Fair Work Act 2009* (Cth).

Justice Nicholls found that BearingPoint INC had not validly terminated Mr. Sutton's employment. The Court reasoned that the purported termination was ineffective because it did not comply with the notice provisions stipulated in the employment agreement. Consequently, Mr. Sutton remained an employee of BearingPoint INC until the date of the Court's decision, and was therefore entitled to his full remuneration and other contractual entitlements up to that point.

Orders