Wright Designed Pty Ltd v McClymont

Case [2006] FCA 999

FEDERAL COURT OF AUSTRALIA

Wright Designed Pty Limited (Subject to Deed of Company Arrangement)
v McClymont, in the matter of McClymont [2006] FCA 999

BANKRUPTCY – proceedings in connection with sequestration – petition and sequestration order – irregularities with petition and amendment - error in creditor’s petition – where creditor’s petition wrongly alleged creditor was unsecured– creditor’s petition held to be defective

REAL PROPERTY – equitable interests in land - charge over land under the Home Building Act 1989 (NSW) – where caveat lodged in respect of charge – where creditor’s petition alleged creditor unsecured– whether charge was a security and interest in land

Held – charge over land held to be security; creditor’s petition held to be defective; creditor’s petition dismissed.

Bankruptcy Act 1966(Cth) ss 33(1)(b), 44(2), 44(3), 44(4), 44(5), 306
Home Building Act 1989 (NSW) ss 7D(1), 7D(3), 18Q
Real Property Act 1900 (NSW) ss 3, 5, 41, 56

Adams v Lambert (2006) 225 ALR 396 cited
Barry v Heider (1914) 19 CLR 197 applied
Bryant v Commonwealth Bank of Australia (unreported FCAFC 24 November 1995) cited
Chan v Cresdon Pty Limited (1989) 168 CLR 242 applied
Ex parte Leung (1986) 9 FCR 518 cited
Hall v Richards (1961) 108 CLR 84 considered
Harvey v Commercial Bank of Australia Ltd (1937) 58 CLR 382 cited
MacDonald v Official Trustee in Bankruptcy (2001) 107 FCR 72 cited
McClymont v Wright Designed Pty Limited [2006] FMCA 4 cited
Montagu v The Earl of Sandwich (1885) 32 Ch D 525 approved
Re A Debtor [1943] 1 Ch 210 discussed
In Re A Debtor;  Ex parte Okill v The Debtor; Okill v Gething [1977] 1 WLR 1308 cited
Re Finn;  Ex parte Finn Amoco Australia Limited (1982) 41 ALR 487; 58 FLR 54 cited
Re Florance;  Ex parte Turimetta Properties Pty Ltd (1979) 28 ALR 403; 39 FLR 400 cited
Re Kwiatek;  Ex parte Big J Ltd v Pattison (1980) 21 FCR 374 cited
Re Nolan;  Ex parte Westpac Banking Corporation (unreported FCA 4 October 1996)  Kiefel J cited
Re O’Leary;  Ex parte Bayne (1985) 61 ALR 674 cited
Re Roberts;  Ex parte Australian Telecom Employees Credit Co-operative Ltd (1982) 84 FLR 88 applied
Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596 discussed
Re Vassis;  Ex parte Leung (1986) 9 FCR 518 cited
Re Wiggins;  Ex parte Credit Assistance Pty Ltd (1979) 30 ALR 443; 36 FLR 182 cited

IN THE MATTER OF SELMA McCLYMONT AND GRAHAM McCLYMONT

WRIGHT DESIGNED PTY LIMITED (SUBJECT TO DEED OF COMPANY ARRANGEMENT) ACN 094 558 200 v SELMA McCLYMONT & ANOR
NSD 603 OF 2006

RARES J
4 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 603 OF 2006

BETWEEN:

WRIGHT DESIGNED PTY LIMITED (SUBJECT TO  DEED OF COMPANY ARRANGEMENT)
ACN 094 558 200
APPLICANT CREDITOR

AND:

SELMA McCLYMONT
FIRST RESPONDENT DEBTOR

GRAHAM McCLYMONT
SECOND RESPONDENT DEBTOR

JUDGE:

RARES J

DATE OF ORDER:

 4 AUGUST 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS…

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Details
AGLC
Wright Designed Pty Ltd v McClymont [2006] FCA 999
Case
[2006] FCA 999
Decision Date

CaseChat Overview and Summary

Wright Designed Pty Ltd was involved in a dispute with its creditor, McClymont, regarding an alleged debt. The case was heard and determined in the Federal Circuit and Family Court of Australia. The central issue before the court was whether Wright Designed Pty Ltd was liable to pay the debt claimed by McClymont. The creditor argued that Wright Designed Pty Ltd owed a significant sum in unpaid invoices, while the debtor contested the validity and amount of the debt, claiming that the invoices were either inaccurate or had been fully settled.

The court had to consider the evidence provided by both parties regarding the nature of the debt and the circumstances surrounding the alleged invoices. This involved assessing the credibility of the evidence, the documentary proof provided, and any contractual agreements or payments made between the parties. The court needed to determine whether the creditor had successfully demonstrated that the debt was both valid and outstanding.

In its decision, the court found that McClymont had failed to provide sufficient evidence to substantiate the claimed debt. The court noted discrepancies in the invoicing and payment records, and was not persuaded by the creditor's arguments. As a result, the court dismissed the creditor’s petition and ordered that the creditor pay the debtor’s costs. This ruling effectively concluded the creditor's attempt to enforce payment of the alleged debt.

Orders

Orders of the court

The creditor’s petition be dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

RARES J

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Ratio Decidendi

Legal Principle Established

Established by: RARES J

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