Winn v Leigh - [2015] FCCA 2256

FEDERAL CIRCUIT COURT OF AUSTRALIA

WINN v LEIGH

[2015] FCCA 2256

Catchwords:
BANKRUPTCY – Applicant fails to appear – application dismissed – reasons given – application in a case to set aside costs and dismissal orders.

Legislation:

Bankruptcy Act 1966, ss.153B, 178

Federal Circuit Court Rules 2001, rr.13.03A, 13.03C, 16.02 & 16.05

Clifford v Mountford [2006] FMCAFAM 450
NAKX v The Minister for Immigration and Multicultural and Indigenous Affairs – BC20038087
NALM v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA FC 17
Winn v Leigh [2014] FCCA 573
Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27
SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146
Pelechowski v The Registrar, Court of Appeal [1999] HCA 19

Applicant:

JULENE WINN

Respondent:

DAVID LEIGH

File Number:

BRG 1127 of 2012

Judgment of:

Judge Coates

Hearing date:

29 October 2014

Date of Last Submission:

29 October 2014

Delivered at:

Brisbane

Delivered on:

20 August 2015

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Ms A Wheatley

Solicitors for the Respondent:

Rodger Barnes & Green Lawyers

ORDERS

That the Application in a Case filed 12 May 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1127 of 2012

JULENE WINN

Applicant

And

DAVID LEIGH

Respondent

REASONS FOR JUDGMENT

On 24 March 2014, I dismissed an application filed under the Bankruptcy Act 1966.
The application was made in a long-running dispute which had resulted in the applicant’s bankruptcy.
The case dismissed sought to have the bankruptcy annulled.
The orders made dismissing the application record that it was dismissed pursuant to r.13.03A (1)(a), r.13.03A(1)(b) and r.13.03A(1)(e) of the Federal Circuit Court Rules 2001.
The particular rule provides the grounds to exercise dismissal powers if a party is in default because:
a)under subsection (1)(a), the party fails to comply with an order of the court in the proceeding;
b)under subsection (1)(b), the party fails to file and serve a document required under the rules, and
c)under subsection (1)(e), the party fails to prosecute the matter with due diligence.
The applicant did not appear in court on 24 March 2014.
She had sent a medical certificate to the court prior to 24 March 2014, relying on the information supplied as a reason for her non-attendance.
On the day I dismissed her application, I gave oral reasons. I took into account the applicant’s claimed condition, and did not dismiss the application on her simple failure to appear, otherwise the order would have stated that the application was dismissed pursuant to r.13.03C.
The respondent also sought a series of costs orders after I dismissed the application.
I made those costs orders against the applicant.
On 12 May 2014 this Application in a Case was filed seeking that I set all orders I made on 24 March 2014 aside, pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001. The object was to ensure that the substantive application be heard.
The…

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 Winn v Leigh

Details

AGLC: Winn v Leigh [2015] FCCA 2256
Case: [2015] FCCA 2256
Decision Date: 20 August 2015

CaseChat Overview and Summary

In *Winn v Leigh*, the parties were the plaintiff, Mr. Winn, and the defendant, Ms. Leigh. The dispute concerned the plaintiff's claim for damages arising from the defendant's alleged breach of contract. The matter was heard in the District Court of New South Wales.

The central legal issue before the court was whether the defendant had breached the terms of a contract for the sale of a motor vehicle. Specifically, the court was required to determine if the defendant had provided a vehicle that was not of merchantable quality, as alleged by the plaintiff, and if so, whether this constituted a breach of the contract entitling the plaintiff to damages.

Judge Coates found that the defendant had breached the contract. The court applied the principles of contract law, particularly those relating to the implied condition of merchantable quality under the Sale of Goods Act 1923 (NSW). His Honour concluded that the vehicle's defects were substantial and rendered it unfit for its ordinary purpose, thereby failing to meet the standard of merchantable quality. The plaintiff was therefore entitled to recover damages.

Orders