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) |
| 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…
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- Case
- [2016] FCCA 989
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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