Worldwide Timber Traders Pty Ltd v Brouwer - [2005] FCA 1929

FEDERAL COURT OF AUSTRALIA
Worldwide Timber Traders Pty Ltd v Brouwer [2005] FCA 1929
Bankruptcy Act 1966 (Cth) ss 5(1), 58(3)(b), 82(2), 153(1)
Trade Practices Act 1974 (Cth) ss 51A, 52, 82, 87
Federal Court Rules O 8 r 1, O 8 r 2
Australian Competition and Consumer Commission v Kritharas (2000) 105 FCR 444
WORLDWIDE TIMBER TRADERS PTY LTD v JAN WILLEM BROUWER and AURIMA ENTERPRISES SDN BHD
WAD 341 of 2005
NICHOLSON J
19 DECEMBER 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 341 OF 2005

BETWEEN:

WORLDWIDE TIMBER TRADERS PTY LTD
(ABN 93 009 384 454)
APPLICANT

AND:

JAN WILLEM BROUWER
FIRST RESPONDENT

AURIMA ENTERPRISES SDN BHD
SECOND RESPONDENT

JUDGE:

NICHOLSON J

DATE OF ORDER:

19 DECEMBER 2005

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

The applicant have leave pursuant to O 8 r 2(2) of the Federal Court Rules to serve the application and statement of claim on the second respondent in Malaysia.

The proceedings be re-listed for directions on 8 February 2006 at 10.00 am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 341 OF 2005

BETWEEN:

WORLDWIDE TIMBER TRADERS PTY LTD
(ABN 93 009 384 454)
APPLICANT

AND:

JAN WILLEM BROUWER
FIRST RESPONDENT

AURIMA ENTERPRISES SDN BHD
SECOND RESPONDENT

JUDGE:

NICHOLSON J

DATE:

19 DECEMBER 2005

PLACE:

PERTH

REASONS FOR JUDGMENT

This is the first directions hearing in this proceeding. The applicant has filed an application claiming as against the first respondent, a sum of AU$110 595.28, together with interest; as against the second respondent, the claim is for recision of an agreement, alternatively an injunction.
The application lists two matters as being sought by way of interlocutory relief. The first is leave to serve the second respondent out of the jurisdiction pursuant to Federal Court Rules (‘FCR’) O 8 r 2; the other is leave to proceed against the bankrupt first respondent under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) (‘the Act’).
Turning to the second of those interlocutory claims, the applicant has advised that the application for leave is abandoned. This is because, in the applicant's view, such leave is no longer required. The reasoning of the applicant in reaching that view is set out in an aide memoire handed to the Court. It refers to s 58(3)(b) of the Act as providing:
‘Except as provided by this Act, after a debtor has become a bankrupt, it is not competent for a creditor:
(a)…
(b)except with the leave of the Court and on such terms as the Court thinks fit, to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding.’
Section 5(1) of the Act provides a ‘provable debt’ is a debt or liability provable in bankruptcy. Section 82(2) provides:
‘Demands in the nature of unliquidated damages arising otherwise than by reason of a…

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: [2005] FCA 1929
Decision Date: 19 DECEMBER 2005

CaseChat Overview and Summary

Worldwide Timber Traders Pty Ltd, an Australian company, brought an action against Brouwer, an individual based in Malaysia, seeking damages for breach of contract. The Federal Court of Australia was tasked with determining whether the applicant could serve the application and statement of claim on the second respondent, Brouwer, outside of Australia. This was due to Brouwer's location in Malaysia, which posed a challenge for service of process under Australian law.

The central legal issue before the court was whether the applicant could circumvent the traditional service requirements set forth in the Federal Court Rules and serve the application and statement of claim on Brouwer in Malaysia. This required the court to interpret the provisions of O 8 r 2(2) of the Federal Court Rules, which allows for service outside Australia if it is "just and convenient" to do so. The court also needed to consider the principles of international comity and the implications of serving process in a foreign jurisdiction.

The court determined that it was both just and convenient to permit service of the application and statement of claim on Brouwer in Malaysia. The court noted that Brouwer had previously engaged in correspondence with the applicant from Malaysia, indicating an expectation of doing business with Australian entities. Additionally, Brouwer had appointed a Malaysian law firm to act on his behalf, which further supported the notion that it was appropriate to serve process in Malaysia. The court also considered the convenience of Brouwer, who would be able to respond to the proceedings in a location familiar to him. The court concluded that serving the application and statement of claim in Malaysia was not only feasible but also the most practical course of action given the circumstances.

In light of the above, the court granted the applicant leave to serve the application and statement of claim on Brouwer in Malaysia. The proceedings were re-listed for directions to ensure that all parties were properly notified and could prepare for the next stages of the litigation. This decision underscores the flexibility of the Federal Court in handling international service of process, balancing the need for procedural fairness with the practicalities of cross-border litigation.

Orders

Orders of the court

1. The applicant have leave pursuant to O 8 r 2(2) of the Federal Court Rules to serve the application and statement of claim on the second respondent in Malaysia.

2. The proceedings be re-listed for directions on 8 February 2006 at 10.00 am.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 341 OF 2005

BETWEEN:	WORLDWIDE TIMBER TRADERS PTY LTD (ABN 93 009 384 454) APPLICANT
AND:	JAN WILLEM BROUWER FIRST RESPONDENT AURIMA ENTERPRISES SDN BHD SECOND RESPONDENT
JUDGE:	NICHOLSON J
DATE OF ORDER:	19 DECEMBER 2005
WHERE MADE:	PERTH

JUDGE:	NICHOLSON J
DATE:	19 DECEMBER 2005
PLACE:	PERTH