Water Corporation v Duckworth - [2017] FCCA 2216

FEDERAL CIRCUIT COURT OF AUSTRALIA

WATER CORPORATION v DUCKWORTH

[2017] FCCA 2216

Catchwords:
BANKRUPTCY – Application for sequestration order of estate of respondent – whether there is “other sufficient cause” under s.52(2) of the Bankruptcy Act 1966 (Cth) to refuse application – whether the debt has been satisfied – whether creditor’s petition is an abuse of process – no “other sufficient cause” – sequestration order made.

Legislation:

Bankruptcy Act 1966 (Cth), ss.41(2), 43, 52, 60

Bankruptcy Regulations 1996 (Cth), sub-reg.4.01(1)(b)
Rules of the Supreme Court 1971 (WA), o.66

Cases cited:

Cain v Whyte (1933) 48 CLR 639; [1932] HCA 6

Duckworth v Water Corporation [2012] WASC 30
Duckworth v Water Corporation (No.2) [2012] WASC 163
Duckworth v Water Corporation [2013] WASC 383
Ling v Enrobook Pty Ltd (1997) 74 FCR 19; [1997] 143 ALR 396
Totev v Sfar (2006) 230 ALR 236; [2006] FCA 470

Applicant:

WATER CORPORATION (ABN 26 003 434 917)

Respondent:

NEIL JAMES DUCKWORTH

File Number:

PEG 190 of 2017

Judgment of:

Judge Smith

Hearing date:

9 August 2017

Date of Last Submission:

9 August 2017

Delivered at:

Sydney and Perth by video link

Delivered on:

29 September 2017

REPRESENTATION

Counsel for the Applicant:

Mr M C Goldblatt

Solicitors for the Applicant:

Lavan Lawyers

The respondent appeared in person.

ORDERS

The estate of Neil James Duckworth be sequestrated under the Bankruptcy Act 1966 (Cth).
The applicant creditor’s costs be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

THE COURT NOTES THAT

The date of the act of bankruptcy is 2 March 2017.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 190 of 2017

WATER CORPORATION (ABN 26 003 434 917)

Applicant

And

NEIL JAMES DUCKWORTH

Respondent

REASONS FOR JUDGMENT

This is an application for a sequestration order to be made against the estate of the respondent, Neil Duckworth. The creditor’s petition is based upon the failure by Mr Duckworth to comply with Bankruptcy Notice 211857 (Bankruptcy Notice). The Bankruptcy Notice was based upon an order of the Supreme Court of Western Australia that Mr Duckworth pay the applicant’s costs in the amount of $123,808.66.
Section 52(1) of the Bankruptcy Act 1966 (Cth) (Act) provides that the Court may make an order for the sequestration of a person’s estate if it is satisfied of the following:
(1)At the hearing of a creditor’s petition, the Court shall require proof of:
(a)the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);
(b)service of the petition; and
(c)the fact that the debt or debts on which the petitioning creditor relies is or are still owing;
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
Subject to one matter to which I will return, none of the matters required by s.52(1) of the Act is in dispute and…

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: [2017] FCCA 2216
Decision Date: 29 September 2017

CaseChat Overview and Summary

The Supreme Court of Western Australia considered the dispute between the Water Corporation and Mr. Duckworth concerning the Corporation's liability for damage caused by a burst water main. Mr. Duckworth sought damages for the loss of his property, alleging negligence on the part of the Water Corporation in its maintenance of the water infrastructure.

The central legal issue before the Court was whether the Water Corporation owed a duty of care to Mr. Duckworth in relation to the maintenance of its water mains, and if so, whether it had breached that duty, thereby causing the damage suffered by Mr. Duckworth. The Court also had to consider the application of the *Water Services Act 2012* (WA) and any relevant statutory immunities or defences available to the Corporation.

The Court found that the Water Corporation, as the statutory authority responsible for the provision of water services, owed a duty of care to property owners to maintain its infrastructure in a manner that prevented foreseeable damage. Applying principles of negligence, the Court examined the evidence regarding the Corporation's maintenance practices, inspection regimes, and response to known issues with the water main. The Court determined that the Corporation had failed to take reasonable steps to prevent the burst, particularly in light of prior indications of potential problems with the pipe. The Court rejected arguments for statutory immunity, finding that the Corporation's actions fell outside the scope of any such protection.

Consequently, the Court found the Water Corporation liable for the damage suffered by Mr. Duckworth and ordered that the Corporation pay damages to be assessed.

Orders