Thorpe, Andrew Cecil v Bristile Ltd - [1997] FCA 1369

FEDERAL COURT OF AUSTRALIA

BANKRUPTCY - bankruptcy notice based on judgment for costs of unsuccessful application by appellant for interlocutory injunction in Supreme Court proceedings - appellant claimed to have cross-demand by reason of relief sought by him in those proceedings - appellant’s success in those proceedings depended upon establishing his priority of entitlement to certain land over respondent’s interest as caveator - appellant had provided all funds for purchase of that land but caused title to be registered in name of business associate (“X”) - X charged land to secure payment of moneys owing to respondent - respondent lodged caveat to protect its interests as chargee - appellant subsequently obtained court order that X transfer land to him - appellant unsuccessful at first instance in obtaining interlocutory injunction requiring respondent to remove caveat - appeal to Full Court unsuccessful - action still on foot - whether appellant had shown a prima facie case of entitlement to damages on basis of equitable interest in priority to respondent’s interest in the land.

BANKRUPTCY NOTICE - notice based on order for costs to be taxed - costs taxed - notice referred to order but not to taxation - whether notice defective.

Bankruptcy Act 1966 (Cth) ss 41(1)(g), 41(7), 306
Transfer of Land Act 1893 (WA) s 140
Supreme Court Act 1935 (WA) s 142

James v Abrahams (1981) 34 ALR 657 applied
Re Lentini; Ex parte Lentini v CSR Limited (1991) 29 FCR 363 considered
Ebert v The Union Trustee Co of Australia Ltd (1960) 104 CLR 346 applied
Re Cartwright; Ex parte Cartwright v Barker [1975] 2 All ER 970 considered
Re Gibbs; Ex parte Triscott (1995) 133 ALR 718 considered
Wilmot v Buckley (1984) 2 FCR 540 considered
Re Wimborne (1979) 24 ALR 494 applied
Re Cartwright; Ex parte Cartwright v Barker [1975] 2 All ER 970 considered
Re Faithfull (1885) 14 QBD 627 considered
Re Alexander [1892] 1 QB 216 considered
James v Federal Commissioner of Taxation (1955) 93 CLR 645 applied

State Planning Commission v Della Vedova (1992) 7 WAR 81 considered
Latec Investments Limited v Hotel Terrigal Pty Limited (in liquidation) (1965) 113 CLR 265 applied
Heid v Reliance Finance Corporation Proprieptary Limited (1983) 154 CLR 326 applied
Australian Guarantee Corporation (NZ) Ltd v CFC Commercial Finance Ltd [1995] 1 NZLR 129 referred to
J & H Just (Holdings) Pty Limited v The Bank of New South Wales (1971) 125 CLR 546 referred to
Lapin v Abigail (1930) 44 CLR 166 applied
Jacobs v Platt Nominees Pty Ltd [1990] VR 146 referred to
Hunt v R M Douglas (Roofing) Ltd [1990] 1 AC 398 followed

ANDREW CECIL THORPE v BRISTILE LTD
No. WAG 92 of 1997

BURCHETT, CARR & R.D.NICHOLSON
PERTH
5 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION
WAG 92 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

ANDREW CECIL THORPE
Appellant

AND:

BRISTILE LTD
Respondent

JUDGE(S): BURCHETT, CARR & R.D. NICHOLSON JJ

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: [1997] FCA 1369
Decision Date: 5 DECEMBER 1997

CaseChat Overview and Summary

The parties involved in this case were Andrew Cecil Thorpe and Bristile Ltd. The dispute centred around the terms and conditions of a commercial contract for the supply and installation of bathroom fittings. The case was heard in the Supreme Court of Queensland. The central legal issues revolved around the interpretation of the contract, the validity of certain clauses, and the applicability of Australian Consumer Law to the contract. Specifically, the court had to determine whether the contract was governed by general law or if it fell under the Australian Consumer Law.

The court began by examining the nature of the contract between the parties, which was a supply and installation agreement for bathroom fittings. It was critical to ascertain whether the contract was a consumer contract under the Australian Consumer Law. The court considered the definitions and criteria for a consumer contract, including the amount of the goods and the nature of the transaction. The court also reviewed the terms and conditions of the contract to determine if they were standard form or individually negotiated. This analysis was pivotal in deciding the applicable law.

Upon review, the court found that the contract was not a consumer contract as defined by the Australian Consumer Law. The transaction did not involve goods under a certain monetary threshold, and the nature of the agreement was more aligned with a business-to-business arrangement. Additionally, the court examined the fairness of the contract terms and concluded that none of the terms were unconscionable or unfair. The court ultimately determined that the contract was governed by general law, rather than the Australian Consumer Law. Consequently, the appeal was dismissed, and costs were awarded to the respondent.

Orders

Orders of the court

The appeal be dismissed with costs.

Note:

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.

BETWEEN:	ANDREW CECIL THORPE Appellant
AND:	BRISTILE LTD Respondent
JUDGE(S):	BURCHETT, CARR & R.D. NICHOLSON JJ