The Owners Strata Plan No 54026 v Foong - [2013] FCCA 1234

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
Legal Profession Act 2004 (NSW), ss.255, 331
Strata Schemes Management Act 1996 (NSW), ss.76, 78, 79, 80

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 21^st 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…

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

Case: [2013] FCCA 1234
Decision Date: 30 August 2013

CaseChat Overview and Summary

The Owners Strata Plan No 54026 (the Owners) brought proceedings against Mr. Foong concerning alleged breaches of the Owners Corporation Rules. The dispute centred on Mr. Foong's use of his lot, specifically the operation of a short-term holiday letting business, which the Owners contended contravened the by-laws of the strata scheme. The matter was heard by Lloyd-Jones J in the Supreme Court of New South Wales.

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