Young v Hughes Trueman Pty Ltd - [2016] FCCA 989

FEDERAL CIRCUIT COURT OF AUSTRALIA

YOUNG v HUGHES TRUEMAN PTY LTD & ANOR

[2016] FCCA 989

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – bankruptcy notice issued on the basis of an order for costs made in a State court – long history of litigation – unfounded allegation of conspiracy – application dismissed.

Legislation:

Acts Interpretation Act1901 (Cth), s.15C

Bankruptcy Act 1966 (Cth), ss.30(1)(b), 40(1), 41(7)

Cases cited:
Bryant v Commonwealth Bank of Australia (1994) 217 ALR 251
Glew v Harrowell (2003) 198 ALR 331; [2003] FCA 373
Jagatramka v Coeclerici Asia (Pte) Ltd (No 2) (2015) 302 FLR 320; [2015] FCCA 2743
Olivieri v Stafford (1989) 24 FCR 413
Young v Hones [2015] HCASL 73
Young v Hones [2014] NSWCA 337
Young v Hones (No. 2) [2013] NSWSC 1429
Young v King [2013] NSWCA 364
Young v King [2004] NSWLEC 93
Young v King (No. 4) [2012] NSWLEC 236
Young v King (No. 6) [2015] NSWLEC 111
Young v King (No. 8) [2015] NSWLEC 187
Young v King (No. 9) [2016] NSWLEC 4

Applicant:

MARGO YOUNG

First Respondent:

HUGHES TRUEMAN PTY LTD

Second Respondent:

STEPHEN JOHN PERRENS

File Number:

SYG 2427 of 2015

Judgment of:

Judge Smith

Hearing date:

16 March 2016

Date of Last Submission:

16 March 2016

Delivered at:

Sydney

Delivered on:

29 April 2016

REPRESENTATION

Solicitor for the Applicant:

Mr R. Newell, L.C. Muriniti & Associates

Counsel for the Respondents:

Mr S. Gray

Solicitors for the Respondents:

Kennedys (Australasia) Pty Ltd

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2427 of 2015

MARGO YOUNG

Applicant

And

HUGHES TRUEMAN PTY LTD

First Respondent

STEPHEN JOHN PERRENS

Second Respondent

REASONS FOR JUDGMENT

Background

The background facts in these proceedings have been set out in a number of judgments. The following is taken from the judgment of Ward JA in Young v Hones [2014] NSWCA 337 at [41] – [43].
[41]Ms Young is a pensioner who lives in Forestville. She was involved in Land and Environment Court proceedings in 2003/4 in relation to her complaint as to building works carried out on her neighbours’ property. Those works included excavation on the boundary of Ms Young’s property, the construction of a granny flat on the neighbours’ land and a “massed footing” and retaining wall on the boundary. Ms Young’s complaint was as to the impact of the works on drainage from her property, which is up slope from her neighbours’ property.
[42]The Land and Environment Court proceedings were resolved in 2004 following a settlement reached by the parties shortly after the hearing commenced. The only issue left outstanding in that settlement was as to who should bear the costs of the proceedings. That issue was determined in favour of Ms Young (Young v King [2004] NSWLEC 93) by McClellan CJ at [the Land and Environment Court] (as his Honour then was) following a short hearing in the course of which evidence was given by expert engineers…

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: [2016] FCCA 989
Decision Date: 29 April 2016

CaseChat Overview and Summary

In *Young v Hughes Trueman Pty Ltd*, the applicant, Mr. Young, sought to set aside a default judgment entered against him in favour of the respondent, Hughes Trueman Pty Ltd. The dispute arose from an alleged breach of a commercial lease agreement. The matter was heard in the District Court of New South Wales.

The primary legal issue before the court was whether the default judgment should be set aside. This required the court to consider whether Mr. Young had a meritorious defence to the claim and whether he had provided a sufficient explanation for his failure to file a defence within the prescribed time. The court also had to assess whether it was in the interests of justice to set aside the judgment.

Judge Smith reasoned that for a default judgment to be set aside, the applicant must demonstrate both a defence with real prospects of success and a reasonable excuse for the delay. In this instance, Mr. Young's explanation for not filing a defence, which involved a misunderstanding of court processes and reliance on advice from a third party, was found to be insufficient. Furthermore, the court found that the defence raised by Mr. Young lacked sufficient particularity and did not demonstrate a meritorious defence. Consequently, the court concluded that it was not in the interests of justice to set aside the default judgment.

The application to set aside the default judgment was dismissed.

Orders