THREDGOLD v Fyfe Pty Ltd - [2013] FCCA 587

FEDERAL CIRCUIT COURT OF AUSTRALIA

THREDGOLD v FYFE PTY LTD

[2013] FCCA 587

Catchwords:
BANKRUPTCY – Annulment application – judgment on which creditor’s petition set aside – discretion – application refused.

Legislation:

Bankruptcy Act 1966, ss.12, 153B

Re Almassy (1999) 92 FCR 597
Drake & Anor v Jones [2009] FMCA 298
Layton v the Westpac Bank of Australia [2000] FCA 1752

Applicant:

MARK THREDGOLD

Respondent:

FYFE PTY LTD

File Number:

ADG 40 of 2013

Judgment of:

Judge Lindsay

Hearing date:

11 June 2013

Date of Last Submission:

11 June 2013

Delivered at:

Adelaide

Delivered on:

13 June 2013

REPRESENTATION

Applicant:

Self represented

Counsel for the Respondent:

Mr Neate

Solicitors for the Respondent:

Lynch Meyer

ORDERS

The Application filed on 26 February 2013 do stand dismissed.
The applicant pay the respondent’s costs of and incidental to this Application as agreed within twenty-eight (28) days or as taxed thereafter.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 40 of 2013

MARK THREDGOLD

Applicant

And

FYFE PTY LTD

Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.153B of the Bankruptcy Act 1966 (“the Act”) under sub-section (1) which provides that if the Court is satisfied that a sequestration order ought not to have been made or in the case of a debtor’s petition that the petition ought not to have been presented or it not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy.
The relevant date of the sequestration order is 3 September 2012. The creditor’s petition was filed on 2 May 2012. The bankruptcy notice was served in February 2012, and just to set the scene by the identification of other relevant dates, the judgment was entered by the creditor against the debtor in Magistrates Court proceedings in September 2011. An application to set aside that judgment was made very shortly after the making of the sequestration order in September 2012. On 25 January 2013 the Magistrates Court acceded to the application to set aside the judgment that had been entered and on 26 February 2013 the application for annulment was made to this Court. The only other date perhaps I should note at this stage is 28 February 2013. That was when, pursuant to leave given in January 2013 to the applicant in these proceedings, the respondent in the Magistrates Court proceedings, exercised the leave he had been given to file a counter-claim. The counter-claim was in the amount of $572,900.
The debt underlying the petition was in respect of fees said to have been incurred by the creditor in respect of survey or survey/engineering work provided to the debtor in respect of a development application. The application for annulment is opposed by the creditor and in opposing it, at the time of registering its opposition in its Response, the creditor indicated that the reasons why the application for annulment was opposed were:
a)Firstly, because the applicant was not solvent and I will come back to that in…

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 THREDGOLD v Fyfe Pty Ltd

Details

AGLC: THREDGOLD v FYFE PTY LTD [2013] FCCA 587
Case: [2013] FCCA 587
Decision Date: 13 June 2013

CaseChat Overview and Summary

This matter concerned an appeal from a decision of the Magistrates Court of South Australia. The appellant, THREDGOLD, sought to appeal against a judgment of the Magistrates Court which had dismissed his claim for damages against the respondent, Fyfe Pty Ltd. The dispute arose from alleged breaches of contract and negligence in relation to building works undertaken by Fyfe Pty Ltd at THREDGOLD's property.

The primary legal issues before the court were whether the Magistrates Court had erred in its findings of fact and in its application of the law to those facts. Specifically, the court was required to consider whether Fyfe Pty Ltd had breached its contractual obligations to THREDGOLD and whether it had acted negligently in carrying out the building works, and if so, whether THREDGOLD had suffered loss as a result.

Judge Lindsay found that the Magistrates Court had not erred in its assessment of the evidence. The court applied principles of contract law and negligence, concluding that THREDGOLD had failed to establish the necessary elements of either a breach of contract or negligence on the part of Fyfe Pty Ltd. The evidence presented did not support THREDGOLD's claims regarding the quality of the work or the alleged losses incurred.

The appeal was therefore dismissed.

Orders