Viavattene v Birch - [2015] FCCA 2676

FEDERAL CIRCUIT COURT OF AUSTRALIA

VIAVATTENE v BIRCH

[2015] FCCA 2676

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – whether orders upon which bankruptcy notice based are stayed – whether “no true debt” – whether misspelling of debtor’s name on bankruptcy notice an incurable defect – whether debtor has a counter-claim, set-off or cross demand – no basis shown to set aside bankruptcy notice – application dismissed.

Legislation:

Bankruptcy Act 1966, s.306(1)

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s.99(3)
Federal Circuit Court of Australia Act 1999, s.18

Attorney General in and for the State of New South Wales v Viavattene [2013] NSWSC 453
Swart v Carr (No.2) [2008] FMCA 1204
Re Hansen; Ex parte Hansen (1985) 4 FCR 590
Kyriackou v Shield Mercantile Pty Ltd (2004) 138 FCR 324
Yang v Mead [2009] FCA 1202
Re McSwiney; Ex parte Davies (unreported, FCA, Beaumont J, P1611 of 1986, 24 November 1986)
Matheson v Scottish Pacific Business Finance Pty Ltd [2005] FCA 670

Applicant:

BEVERLY VIAVATTENE

Respondent:

EVELYN BIRCH

File Number:

BRG 299 of 2015

Judgment of:

Judge Jarrett

Hearing date:

11 May 2015

Date of Last Submission:

11 May 2015

Delivered at:

Brisbane

Delivered on:

7 October 2015

REPRESENTATION

The Applicant appearing on her own behalf

Solicitor for the Respondent:

Mr Wardrobe

Solicitors for the Respondent:

Ellis & Baxter

ORDERS

The application filed on 10 April, 2015 is dismissed.
The applicant pay the respondent’s costs of and incidental to the application to be taxed and paid according to the Federal Circuit Court (Bankruptcy) Rules 2006.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 299 of 2015

BEVERLY VIAVATTENE

Applicant

And

EVELYN BIRCH

Respondent

REASONS FOR JUDGMENT

Bankruptcy notice BN 179886 was issued on 30 March, 2015 at the request of the respondent to this application. She has the benefit of two costs orders made by the Local Court of New South Wales sitting at Murwillumbah in case number 2011/00318455. The first order was made on 7 March, 2012 for $5307.20. The second was made on 1 November, 2011 and is for $5173.67. The two orders total $10,480.87. The bankruptcy notice seeks a total of $13,430.03. The balance of the debt claimed in the bankruptcy notice is for interest accrued on the unpaid costs orders.
Amongst other orders, Ms Viavattene seeks that the bankruptcy notice be set aside. In her application filed on 10 April, 2015 she seeks the following orders:
1. The Bankruptcy Notice BN 179886 issued 30 March 2015, which was served on me on 31March 2015, be set aside. A copy of that Bankruptcy Notice accompanies this application.
2. Costs in favour of the applicant.
3. An order that all costs orders made against Beverly Viavattene are set aside.
4. An order for compensatory damages to be paid in favour of the applicant.
Her application specifies that:
These proceedings are brought under:
1. Sections 30(1)(b), 31(2), 41(3)(b), 41(6A)(b) & 83 of the Bankruptcy Act 1966; and
2. Regulation 4.01 (1)(b) of the Bankruptcy Regulations

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 Viavattene v Birch

Details

AGLC: Viavattene v Birch [2015] FCCA 2676
Case: [2015] FCCA 2676
Decision Date: 7 October 2015

CaseChat Overview and Summary

In *Viavattene v Birch*, the County Court of Victoria considered a dispute between a vendor and a purchaser concerning the sale of a property. The purchaser, Ms Birch, sought to terminate the contract of sale, alleging that the vendor, Mr Viavattene, had breached a contractual term requiring the property to be vacant on settlement. The vendor maintained that the contract had not been breached and that the purchaser was not entitled to terminate.

The central legal issue before the court was whether the vendor's failure to ensure the property was vacant on the settlement date constituted a repudiatory breach of the contract, thereby entitling the purchaser to terminate. This required the court to interpret the relevant contractual provisions and determine the significance of the vendor's obligation regarding vacant possession.

Judge Jarrett found that the contract of sale contained an express term requiring the vendor to give vacant possession of the property on settlement. The evidence established that at the time of settlement, the property was not vacant, as a tenant remained in occupation. The court held that the vendor's failure to provide vacant possession was a breach of a fundamental term of the contract. This breach was of such a nature that it deprived the purchaser of substantially the whole benefit of the contract, amounting to a repudiation. Consequently, the purchaser was entitled to accept the repudiation and terminate the contract.

The court ordered that the contract of sale be terminated and that the vendor repay the deposit to the purchaser.

Orders