Vlymen v Lever Solomon Ltd - [2021] FCCA 884

FEDERAL CIRCUIT COURT OF AUSTRALIA

VLYMEN v LEVER SOLOMON LTD & ANOR

[2021] FCCA 884

Catchwords:

BANKRUPTCY LAW – Application to set aside a Bankruptcy Notice – dismissed after underlying judgment debt set aside in the Solomon Islands Court of Appeal – remaining dispute on the question of costs.

Legislation:
Bankruptcy Act 1966 (Cth) ss 32, 41(6A)(a)

Federal Circuit Court of Australia Act 1999 (Cth) ss 79; 86.

Federal Circuit Court Rules 2001 rr 21.02, 21.03, 21.04

Cases cited:
Principal Strategic Options Pty Ltd, in the matter of Coshott v Coshott [2001] FCA 664
Vlymen v Lever Solomons Limited & Ors [2021] SBCA 2; SICOA-CAC 20 of 2019.
Sockhill v DCT [2000] FCA 1208.
Genovese v BGC Construction Pty Ltd Pty Ltd(No. 2) [2007] FMCA 601
Shephard v Chiquita Brands (South Pacific) Ltd [2003] FCA 464
Cummings v Lewis [1992] FCA 334.

Re Skase; ex parte Donnelly [1992] FCA 429

Applicant:

WILLEM JOHAN VAN VLYMEN

First Respondent:

LEVER SOLOMON LIMITED

Second Respondent:

RUSSELL ISLANDS PLANTATION LIMITED

File Number:

SYG 1528 of 2019

Judgment of:

Registrar Chuan Ng

Hearing date:

6 April 2021

Date of Last Submission:

20 April 2021

Delivered at:

Sydney

Delivered on:

10 May 2021

REPRESENTATION

For the Applicant:

Mr S Keleher solicitor

For the Respondents:

Ms S Nash solicitor

ORDERS:

Each party bear their own costs.

THE COURT NOTES:

The Bankruptcy Notice number 240750 issued on 14 May 2019 was set aside on 10 May 2021.

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 1528 of 2019

WILLEM JOHAN VAN VLYMEN

Applicant

And

LEVER SOLOMON LIMITED

First Respondent

RUSSELL ISLANDS PLANTATION LIMITED

Second Respondent

REASONS FOR DECISION

On 6 April 2021 Bankruptcy Notice Number 240750 issued on 14 May 2019 was set aside.
The question of costs was adjourned to the present date.
For the reasons identified in this judgment, each party is to bear its own costs.

BACKGROUND

This matter has a convoluted history. It traverses four court jurisdictions: the High Court of the Solomon Islands; the Court of Appeal of the Solomon Islands; the Supreme Court of NSW; and the Federal Circuit Court of Australia.
The following narrative is derived from the judgment of the Court of Appeal of the Solomon Islands in Vlymen v Lever Solomons Limited & Ors [2021] SBCA 2; SICOA-CAC 20 of 2019.

The original litigation in the Solomon Islands

The parties originally commenced litigation in the High Court of the Solomon Islands. Respectively, the Respondents and Applicant were the Plaintiff (Respondents in the appeal) and the Defendant (Appellant in the appeal) in the Solomon Island proceedings.
On 18 August 2018 the Plaintiff purportedly served a Statement of Claim on the Defendant in the High Court. Pursuant to the applicable rules of Court in that jurisdiction, the Defendant had 14 days to file a Conditional Response. That was not complied with within that prescribed time period.
On 6 September 2018, the Defendant’s lawyer, a Desmond Namepo, belatedly filed a Conditional Response disputing that his client…

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 Vlymen v Lever Solomon Ltd

Details

AGLC: Vlymen v Lever Solomon Ltd [2021] FCCA 884
Case: [2021] FCCA 884
Decision Date: 10 May 2021

CaseChat Overview and Summary

The parties involved were Vlymen and Lever Solomon Ltd. The dispute concerned an application to set aside a bankruptcy notice. The matter came before Registrar Chuan Ng.

The primary legal issue before the Court was the question of costs, following the setting aside of the underlying judgment debt by the Solomon Islands Court of Appeal.

Registrar Chuan Ng determined that given the bankruptcy notice was predicated on a judgment that was subsequently set aside, the application to set aside the notice should be dismissed. The Court then considered the appropriate orders for costs in light of this outcome.

The Court ordered that Lever Solomon Ltd pay Vlymen's costs of the application, to be summarily assessed.

Orders