Wagener v Di Iorio - [2015] FCCA 322

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAGENER v DI IORIO

[2015] FCCA 322

Catchwords:
BANKRUPTCY – Application to review sequestration order made by Registrar – act of bankruptcy proved – sequestration order properly made – application for review dismissed.

Legislation:

Bankruptcy Act 1966, s.52
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss.131, 164(1)

Owen v Menzies [2013] 2 Qd R 327

Applicant:

GARY SEAN WAGENER TRADING AS WAGENER BUILDING SERVICES

Respondent:

PETER DI IORIO TRADING AS DI IORIO HOMES

File Number:

BRG 814 of 2014

Judgment of:

Judge Jarrett

Hearing date:

9 February 2015

Date of Last Submission:

9 February 2015

Delivered at:

Brisbane

Delivered on:

9 February 2015

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent:

Mr Garlick

Solicitors for the Respondent:

Q.A.S Legal House

ORDERS

The application is dismissed.
The applicant pay the first respondent’s costs of and incidental to the application to be taxed and paid in accordance with the Federal Circuit Court (Bankruptcy) Rules 2006.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 814 of 2014

GARY SEAN WAGENER TRADING AS WAGENER BUILDING SERVICES

Applicant

And

PETER DI IORIO TRADING AS DI IORIO HOMES

Respondent

REASONS FOR JUDGMENT

ex tempore

On 27 September, 2010 the Magistrates Court of Queensland at Coolangatta gave judgment against the applicant before me in favour of the respondent. The judgment was for $8240 and was based upon a decision of the Queensland Civil and Administrative Tribunal.
The registration of the QCAT decision in the Coolangatta Magistrates Court was authorised by s.131 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). That section provides that, upon registration, the judgment can be enforced as if it were a judgment of the court in which it was registered.
There was subsequently issued by the respondent against the applicant a bankruptcy notice. The bankruptcy notice is based upon the judgment of the Magistrates Court at Coolangatta. The bankruptcy notice is in the usual form and in these proceedings no complaint is made about the form of the bankruptcy notice or the judgment attached to it.
The bankruptcy notice required compliance within 21 days of service of it upon the applicant. The bankruptcy notice was issued on 12 August, 2014 and served upon the applicant on 13 August, 2014. He, therefore, had until 2 September, 2014 to comply with its terms. It does not seem to be in dispute that he did not comply with its terms. So, on 3 September, 2014 the applicant committed an act of bankruptcy.
The creditor has issued a creditor’s petition relying upon that act of bankruptcy. The creditor’s petition was filed on 16 September, 2014. There is, again, seemingly no dispute that the creditor’s petition was served on the applicant. He did not appear when the creditor’s petition was returned to the Court. On 23 October, 2014 Registrar Baldwin, exercising the jurisdiction of this Court, made a sequestration order against the estate of the applicant.
Whilst the applicant accepts that he…

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: [2015] FCCA 322
Decision Date: 9 February 2015

CaseChat Overview and Summary

In *Wagener v Di Iorio*, the Supreme Court of Queensland considered a dispute between a vendor and a purchaser concerning the sale of a residential property. The purchaser sought to terminate the contract, alleging a breach of a special condition requiring the vendor to obtain vacant possession of the property by a specified date. The vendor contended that they had substantially complied with the condition and that the purchaser was not entitled to terminate.

The central legal issue before the Court was whether the vendor's failure to deliver vacant possession by the contractual date constituted a repudiatory breach of the contract, thereby entitling the purchaser to terminate. This required the Court to interpret the nature of the special condition and assess whether it was a condition precedent to the purchaser's obligations or a term the breach of which could be remedied.

Judge Jarrett found that the special condition requiring vacant possession by a specific date was a condition precedent. The Court reasoned that the parties had clearly intended for vacant possession to be a fundamental aspect of the contract, and the precise date stipulated was material. The vendor's inability to provide vacant possession by that date meant they had failed to fulfil a crucial obligation, which amounted to a repudiatory breach. Consequently, the purchaser was entitled to accept the repudiation and terminate the contract. The Court therefore ordered that the contract be terminated and that the deposit paid by the purchaser be returned.

Orders