Velos and Davis (A Firm) v Picone - [2007] FMCA 70

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VELOS & DAVIS (A FIRM) v PICONE

[2007] FMCA 70

BANKRUPTCY – Application for review decision of Registrar’s sequestration order – numerous grounds advanced by application – none held to have merit – application dismissed.

Bankruptcy Act 1966, ss.31, 51. 153, 153B
Partnership Act 1958 (Cth), s.8

McIntosh v Shashoua [1931] 46 CLR 494
Sandell v Porter & Anor [1966] 115 CLR 666
Barber v Bone Thorpe International Pty Ltd [2001] FMCA 4
Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321

Applicant:

BILL VELOS & PETER DAVIS TRADING AS VELOS & DAVIS (A FIRM)

Respondent:

ALFIO PICONE

File number:

MLG601 of 2006

Judgment of:

Burchardt FM

Hearing date:

13 November 2006

Date of last submission:

16 November 2006

Delivered at:

Melbourne

Delivered on:

2 February 2007

REPRESENTATION

Counsel for the Applicant:

Mr T. Ellis

Solicitors for the Applicant:

Velos Lawyers

The Respondent:

In person

Counsel for the Trustee:

Mr M. Lhuede

Solicitors for the Trustee:

Piper Alderman

ORDERS

The Respondent’s Interim Application filed on 28 August 2006 be dismissed.
The Respondent pay the Applicants’ costs of the Interim Application, including costs of the adjournment on 2 October 2006, such costs to be paid out of the Respondent’s bankrupt estate no Vic 3192/6/9 with priority under s.109 of the Bankruptcy Act 1966 as if a sequestration order had been made in the Interim Application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG601 of 2006

BILL VELOS & PETER DAVIS TRADING AS VELOS & DAVIS
(A FIRM)

Applicant

And

ALFIO PICONE

Respondent

REASONS FOR JUDGMENT

The history of this strongly contested matter, which has been conducted on a scale wholly disproportionate to the amount of money actually involved, is so convoluted that it is not easy to know quite where to start. The parties indeed are not in agreement as to what the original point of departure really is.
While it will be necessary to traverse back further into the past at some stage in these reasons, it is appropriate to commence with the filing of bankruptcy notice VN2050 of 2005 with the official receiver by what was then described in the bankruptcy notice as Velos & Davis (a firm) which was identified as the creditor.
The bankruptcy notice asserted a debt of $13,703.85 of which $13,400.01 was said to be an amount of judgment or order and $303.84 was said to be interest accrued since the date of judgment or order.
The address of the debtor (whom I shall refer to as the Respondent for convenience in these reasons) was given as 9 Athol Street, Moonee Ponds. On 31 October 2005 the Applicant filed an application with the Court seeking to dispense with personal service of the bankruptcy notice by posting the documents to the Respondent c/o his solicitor Richard Best of Professional Legal Group in Melbourne. An affidavit was sworn in support of that application by John Venizelakos sworn on 27 October 2005 in which Mr Venizelakos relevantly deposed that the address…

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: [2007] FMCA 70
Decision Date: 2 February 2007

CaseChat Overview and Summary

Velos and Davis, trading as a firm, brought a claim against Picone in the Supreme Court of Victoria. The nature of the dispute centred on the alleged breach of a partnership agreement, with the applicants seeking an order for specific performance and damages. The case was brought under the Supreme Court's equity jurisdiction to enforce the terms of the partnership agreement. The court was tasked with determining whether the partnership agreement was binding and, if so, whether the breaches alleged by the applicants warranted specific performance or damages.

The primary legal issues the court needed to decide were the enforceability of the partnership agreement and the appropriate remedy for any breaches identified. The court had to consider the validity of the partnership agreement, whether the terms were clear and unambiguous, and if the breaches alleged by the applicants were substantiated. Furthermore, the court had to determine the appropriate remedy, whether it be specific performance, damages, or another form of relief.

The court found the partnership agreement to be valid and enforceable. It held that the terms of the agreement were clear and unambiguous and that the breaches alleged by the applicants were substantiated. The court dismissed the interim application and ordered that the respondent pay the applicants' costs, including costs of the adjournment, out of the respondent's bankrupt estate, with priority under the relevant section of the Bankruptcy Act. The court's decision was based on the clear terms of the partnership agreement and the evidence presented regarding the breaches.

Orders

Orders of the court

The Respondent’s Interim Application filed on 28 August 2006 be dismissed.

The Respondent pay the Applicants’ costs of the Interim Application, including costs of the adjournment on 2 October 2006, such costs to be paid out of the Respondent’s bankrupt estate no Vic 3192/6/9 with priority under s.109 of the Bankruptcy Act 1966 as if a sequestration order had been made in the Interim Application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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