Wright v Rabot - [2017] FCCA 2663

FEDERAL CIRCUIT COURT OF AUSTRALIA

WRIGHT & ANOR v RABOT

[2017] FCCA 2663

Catchwords:
BANKRUPTCY – Debtor’s application to adjourn or dismiss creditor’s petition – debtor’s allegation that a trial for defamation in which he sues the petitioning creditor will yield an outcome of or greater than the sum sought by the petitioning creditors – basis for adjournment or dismissal not established.

Legislation:

Bankruptcy Act 1966, ss.33, 52, 60(4)

Cases cited:

Cain v Whyte (1933) 48 CLR 639
Clapham v Commonwealth Bank [2013] FCAFC 84
Endresz v Australian Securities and Investments Commission (No.2) [2015] FCAFC 33
Holmes v Goodyear Tyre and Rubber Co (Aust) Ltd (1984) 55 ALR 594
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re James; Ex parte Carter Holt Harvey Roofing (Aust) Pty Ltd (No.2) (1994) 51 FCR 14
Re Schmidt; Ex parte Anglewood Pty Ltd (1968) 13 FLR 111
Rozenbee v Kronhill (1956) 95 CLR 407
Re SVIR; Ex parte Commissioner of Taxation (1998) 83 FCR 314
Sheehan v Brett-Young (No.3) [2016] VSC 39

First Applicant:

IPSITA WRIGHT

Second Applicant:

ADRIAN PHILIP WRIGHT

Respondent:

MICHAEL ANTHONY RABOT

File Number:

MLG 999 of 2017

Judgment of:

Judge Wilson

Hearing date:

30 October 2017

Date of Last Submission:

30 October 2017

Delivered at:

Melbourne

Delivered on:

1 November 2017

REPRESENTATION

Counsel for the Applicants:

Mr P Miller

Solicitors for the Applicants:

Kalus Kenny Intelex Lawyers

Solicitors for the Respondent:

Irlicht & Broberg

ORDERS

The applications made by the respondent under s.52(2)(b) and s.33 of the Bankruptcy Act 1966 (Cth) are dismissed.
The estate of Michael Anthony Rabot is sequestrated under the Bankruptcy Act 1966 (Cth).
The applicant creditors’ costs be taxed and paid from the estate of respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 999 of 2017

IPSITA WRIGHT

First Applicant

ADRIAN PHILIP WRIGHT

Second Applicant

And

MICHAEL ANTHONY RABOT

Respondent

REASONS FOR JUDGMENT

On 7 September 2017 Registrar Ryan of this court referred to me for determination the application by Ipsita Wright and

Adrian Philip Wright (“the petitioning creditors”) for an order for the sequestration of the estate of Michael Anthony Rabot (“Mr Rabot”).
On 30 October 2017 this proceeding was listed for trial before me. Rather than it proceeding as a trial, the matter turned into a contested debate during which –
a)the respondent argued that the petitioning creditors’ application for a sequestration order should be deferred until judgment is handed down in the respondent’s case presently pending before the County Court of Victoria for damages for defamation; and
b)the petitioning creditors urged me to hear and determine their application for orders for the sequestration of the respondent’s estate, arguing that the respondent’s application was unmeritorious for the four reasons given by counsel for the petitioning creditors.
Having regard to the proximity of the trial before the County Court, it is imperative that I give my decision without delay. But equally, it is essential I say no more than…

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 Wright v Rabot

Details

AGLC: Wright v Rabot [2017] FCCA 2663
Case: [2017] FCCA 2663
Decision Date: 1 November 2017

CaseChat Overview and Summary

In the matter of *Wright v Rabot*, the Supreme Court of Tasmania considered a dispute between a vendor and a purchaser concerning the sale of a property. The purchaser sought to terminate the contract of sale, alleging that the vendor had failed to provide vacant possession as required by the contract.

The central legal issue before the Court was whether the vendor had breached the contract by failing to deliver vacant possession on the settlement date. This required the Court to interpret the meaning of "vacant possession" in the context of the contract and to determine whether the presence of a tenant, who had not yet vacated, constituted a failure to provide vacant possession.

Justice Wilson found that the vendor had indeed breached the contract. His Honour reasoned that "vacant possession" means that the purchaser is able to enter into and enjoy the property immediately upon settlement, free from any other person's occupation or right to occupy. The continued presence of the tenant, even if their lease was nearing its end, meant that the purchaser could not obtain immediate and exclusive possession. Consequently, the purchaser was entitled to terminate the contract.

Orders