FEDERAL CIRCUIT COURT OF AUSTRALIA
| THE OWNERS - STRATA PLAN NO 54026 v FOONG | [2013] FCCA 1234 |
| Catchwords: BANKRUPTCY – Creditor’s Petition – notice stating grounds of opposition to petition filed – no sustainable grounds raised to support the setting aside of the Creditor’s Petition – notice dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.36(2) Bankruptcy Act 1966 (Cth), ss.40(1)(g), 44(1)(a), 52(1)(b), 309(2) Civil Procedure Act 2005 (NSW), s.101 |
| Deputy Commission of Taxation v Catanese (1999) 42 ATR 247 Emerson & Anor v Wreckair Pty Ltd (1992) 33 FCR 581 Farrington v Deputy Commissioner of Taxation (2002) 50 ATR 429 Ginnane v Diners Club Ltd (1993) 42 FCR 90 King v Henderson (1896) 7 BC (NSW) 35 O’Farrell v Palicave Pty Ltd (2009) 176 FCR 134 Re Child; Ex parte Child [1892] 2 QB 77 Re Frank; Ex parte Piliszky (1987) 16 FCR 396 Re Miller; Ex parte Furniture and Fine Arts Depositories Ltd [1912] 3 KB 1 Re Raymond (1892) 66 LT 400 at 402 Re Sacker; Ex parte Sacker (1888) 22 QBD 179 Richmond and Bay Bon Investments Pty Ltd [2007] FCA 1060 Sogelease Australia Ltd v Griffin (2003) 128 FCR 399 Walsh v Deputy Commissioner of Taxation (1984) 156 CLR 337 |
| Applicant: | THE OWNERS - STRATA PLAN NO 54026 |
| Respondent: | CHAO JOI FOONG |
| File Number: | SYG 679 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 27 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Holt of Grace Lawyers |
| The Respondent: | The Respondent appeared in person with the assistance of his mother Yena Foong. |
ORDERS
The Notice Stating Grounds of Opposition to the Creditor’s Petition filed by the respondent debtor on 11 April 2013 be dismissed.
The Creditor’s Petition be set down for hearing before a registrar of this Court at 10.00am on Monday 2 September 2013 in Court 6D, John Maddison Tower, 88 Goulburn Street, Sydney.
The Respondent Debtor pay the Applicant Creditor’s costs of and incidental to the Notice Stating Grounds of Opposition to the Creditor’s Petition filed on 11 April 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 679 of 2013
| THE OWNERS - STRATA PLAN NO 54026 |
Applicant
And
| CHAO JOI FOONG |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant creditor in these proceedings, The Owners – Strata Plan No 54026 (the “Creditor”), filed a creditor’s petition in this Court on 4 April 2013 (the “Petition”). The Petition is based on the failure of the respondent debtor, Chao Joi Foong (“Mr Foong”), to comply within 21 days with the requirements of a bankruptcy notice served on him on 15 December 2012 (the “Bankruptcy Notice”). It should be noted that the 21st day after service of the Bankruptcy Notice was 5 January 2013, however, this day fell on a Saturday and, accordingly, the act of bankruptcy was deemed to have been committed by Mr Foong on Monday 7 January…
Keep reading for free
Create a free CaseChat account to read The Owners Strata Plan No 54026 v Foong 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2013] FCCA 1234
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether Mr. Foong's activities constituted a breach of the Owners Corporation Rules, particularly those prohibiting the use of a lot for any purpose that causes a nuisance or hazard to other lot owners, or that interferes with the peaceful enjoyment of their lots. The Court was required to interpret the scope and application of these rules in the context of a residential strata scheme and the operation of a commercial holiday letting enterprise.
Lloyd-Jones J reasoned that the relevant by-laws were designed to maintain the residential character of the strata scheme and protect the amenity of its residents. His Honour found that the frequent turnover of guests, associated noise, and increased traffic generated by the short-term letting business constituted a nuisance and interfered with the peaceful enjoyment of other lot owners, thereby breaching the by-laws. The Court applied the principles of statutory interpretation to the by-laws, considering their purpose and the ordinary meaning of the words used.
The Court ordered that Mr. Foong be restrained from continuing to operate the short-term holiday letting business from his lot and that he pay the Owners' costs of the proceedings.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.