BANKRUPTCY – Application to set aside bankruptcy notice – whether application made before time for compliance expired – whether an application actually made.
BANKRUPTCY – Application to set aside bankruptcy notice – whether application for order to set aside bankruptcy notice on the ground that applicant has counter-claim, set-off or cross-demand – whether application made before time for compliance expired – whether Court satisfied that debtor has counter-claim, set-off or cross-demand – cross-demand alleges breach of contract and unlawful interference with contractual relations.
COPYRIGHT – Design of boat plug and mouldings – issue of artistic craftsmanship – previous proceedings in Federal Court and High Court.
JG Fleming, The Law of Torts (9th Edn) (Sydney: LBC Information Services,…
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
AGLC
Swarbrick v Burge & Ors [2009] FMCA 985
Case
[2009] FMCA 985
Decision Date
CaseChat Overview and Summary
Swarbrick v Burge & Ors involved a dispute between the applicant, John Swarbrick, and the respondents, Burge and others, concerning an application to set aside a bankruptcy notice. The application was made before the time for compliance with the bankruptcy notice had expired. The applicant, Swarbrick, claimed that the application was based on a counter-claim, set-off or cross-demand, alleging breach of contract, theft of property, breach of copyright, and unlawful interference with contractual relations. The court had to decide whether the application was made before the time for compliance expired, and whether the applicant had a valid counter-claim, set-off or cross-demand. The court held that the applicant had not made an actual application to set aside the bankruptcy notice, and that the counter-claim did not provide a valid ground for setting aside the notice. The application was dismissed.
The court found that the applicant had not made an actual application to set aside the bankruptcy notice, as required by the Bankruptcy Act. The applicant had failed to comply with the Bankruptcy Rules by not stating under which sections of the Bankruptcy Act or regulations the application had been made, and by not providing full details of the counter-claim. The court also found that the applicant had not made an application for an order to set aside the bankruptcy notice on the ground that he had a counter-claim, set-off or cross-demand, as required by the Act. The applicant had only made a counter-claim, which was not sufficient to set aside the bankruptcy notice. The court held that the applicant had not satisfied the requirements for setting aside the bankruptcy notice, and dismissed the application.
Orders
Orders of the court
1.
That the application be dismissed.
Background
Background to the litigation
Swarbrick’s First Affidavit sets out a series of alleged facts under the heading “Summary of Facts Relevant to Application”.[27] Assuming for the purposes of this part of these reasons for judgment, and without deciding as to their factual accuracy or their admissibility, that the facts are as deposed to in Swarbrick’s First Affidavit, none of the facts relate to an application to set aside the Bankruptcy Notice. Each of the facts relates to, and sets up, what is described as a “Counter-claim”.[28] The counter-claim is for sums of money, totalling $1.117m, being:a)$700,000, alleged to be the aggregate sum of professional fees for design and costs for the JS 9000 boat building project pursuant to an agreement called the Burge Agreement;[29]b)$15,000, alleged to be the aggregate sum for professional fees for the loss of design, geometrical and mechanical engineering details contained in what is described as “the Console mould”;[30]c)$12,000, alleged to be the aggregate sum of professional fees for the loss of design, geometrical and mechanical engineering details contained in the keel moulding, rudder moulding, bulkhead moulding and chain plate knee moulding;[31] andd)a claim for a sum of $390,000, allegedly being the aggregate sum for the loss of a ten JS 9000 boat order placed by an English agent, JS Yachts UK with Swarbrick Yachts International and John Swarbrick in February 2003.[32][27] Swarbrick’s First Affidavit, paras.1-29.[28] Swarbrick’s First Affidavit, paras.30-33.[29] Swarbrick’s First Affidavit, para.30. [30] Swarbrick’s First Affidavit, para.31.[31] Swarbrick’s First Affidavit, para.32.[32] Swarbrick’s First Affidavit, para.33; “Ten Boat Order”. Each of the above claims is said to be a claim against “the Respondents”.[33][33] Swarbrick’s First Affidavit, paras.30-33. The “legal basis” for the counter-claim is not clearly set out but appears to relate to:a)alleged breach of contract in relation to the Burge Agreement;b)alleged unauthorised removal/theft of property;c)alleged breach of copyright (although Mr Swarbrick said at hearing that this was not being alleged, but then appeared to argue that there was a breach);[34] andd)alleged unlawful interference with contract.[35][34] Transcript at pp.52 and 54.[35] Swarbrick’s First Affidavit, para.34. Mr Swarbrick says that, taking into account the counter-claim, there results a debt due to him by “the Respondents” (jointly) of $991,890, being the $1.117m less the amount of $125,110 referred to in the Bankruptcy Notice. In determining the nature of the application, and the basis for it, the Court has not been assisted by the fact that Mr Swarbrick has not complied with:a)rule 2.01(3)(a) of the Bankruptcy Rules, in that the application does not state under which sections of the Bankruptcy Act or which regulations of the Bankruptcy Regulations the application has been made; andb)rule 3.02(2)(a) of the Bankruptcy Rules in that the application does not give “full details” of the alleged counter-claim, set-off or cross-demand.[36][36] As to which see paras.96-98 below.