Zhang v Ehrenfeld - [2015] FCCA 877

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZHANG v EHRENFELD

[2015] FCCA 877

Catchwords:
BANKRUPTCY – Creditor’s Petition – notice stating grounds of opposition filed – whether proper service of bankruptcy notice was effected on debtor in accordance with the Bankruptcy Act 1966 (Cth) – whether bankruptcy notice was served on debtor at his last known address – proper service of bankruptcy notice not effected – Creditor’s Petition dismissed.

Legislation:

Bankruptcy Act 1966 (Cth), ss.41, 52(1)

Corporations Act 2001 (Cth), ss.205B, 205D

Bankruptcy Regulations 1996 (Cth), rr.16.01, 16.01(1)(a), 16.01(1)(c)

Uniform Civil Procedure Rules 2005 (NSW), r.12.17

Civic Video Pty Ltd v Warburton (2013) 216 FCR 61
DM Developments v Driscoll & Anor (2011) 251 FLR 415
Fancourt & Anor v Mercantile Credits Ltd (1983) 154 CLR 87
Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107

Applicant:

KENNY ZHANG

Respondent:

GABRIEL EHRENFELD

File Number:

SYG 364 of 2014

Judgment of:

Judge Lloyd-Jones

Hearing date:

12 December 2014

Delivered at:

Sydney

Delivered on:

17 April 2015

REPRESENTATION

Solicitor for the Applicant:

Mr D Oliveri of Oliveri Attorneys

Counsel for the Respondent:

Mr B Dean

Solicitors for the Respondent:

Carrolls Lawyers

ORDERS

The Creditor’s Petition filed on 18 February 2014 be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the Creditor’s Petition.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 364 of 2014

KENNY ZHANG

Applicant

And

GABRIEL EHRENFELD

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is a creditor’s petition filed by the applicant, Kenny Zhang (“Zhang”), on 18 February 2014 (the “Petition”), seeking to have a sequestration order made against the estate of the respondent debtor, Gabriel Ehrenfeld (“Ehrenfeld”). The Petition is founded on a default judgment in favour of the applicant entered in the Local Court of NSW on 9 August 2013 in the amount of $88,308.50 (the “Judgment Debt”). It is not in dispute that the respondent entered into a residential tenancy agreement for a property located at Kings Road, Vaucluse, NSW (the “Vaucluse Property”) with the applicant through Brian McMillan of World Square Realty Pty Ltd. The basis of the Judgment Debt arises from claimed unpaid rent at the Property.
The basis of the debt founding the Petition is that Ehrenfeld owes Zhang the amount of $88,308.30 for a judgment entered in the Local Court of New South Wales on 9 August 2013 in matter number 2012/00387656, together with interest.
On 25 March 2014, solicitors representing Ehrenfeld filed a notice stating grounds of opposition to the Petition (the “Notice of Opposition”) indicating that they intended to oppose the Petition on the following grounds:
1. The respondent did not commit and act of bankruptcy as alleged in Paragraph 4 of the Petition;
Particulars
a) the respondent did not receive the bankruptcy notice; and further or alternatively,
b) the address in which the Notice was delivered was not the respondent’s last known address.
2. The respondent is able to pay his debts within the meaning of s.52(2)(a) of the Bankruptcy Act 1966.
3.…

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 Zhang v Ehrenfeld

Details

AGLC: Zhang v Ehrenfeld [2015] FCCA 877
Case: [2015] FCCA 877
Decision Date: 17 April 2015

CaseChat Overview and Summary

In *Zhang v Ehrenfeld*, heard before Lloyd-Jones J in the Supreme Court of New South Wales, the plaintiff, Ms. Zhang, sought to recover damages for personal injuries sustained in a motor vehicle accident. The defendant, Mr. Ehrenfeld, was the driver of the other vehicle involved in the collision. The central dispute concerned the extent of Ms. Zhang's injuries and the quantum of damages to which she was entitled.

The primary legal issues before the Court were to determine the causal link between the accident and the injuries claimed by Ms. Zhang, and to assess the appropriate compensation for those injuries. This involved evaluating the medical evidence presented by both parties regarding the nature, severity, and duration of Ms. Zhang's alleged impairments, and considering whether any pre-existing conditions contributed to her current state.

Lloyd-Jones J considered the expert medical opinions and the testimony of the parties. His Honour applied the principles of causation in tort law, requiring Ms. Zhang to prove on the balance of probabilities that the accident was a material cause of her injuries. The Court also had regard to the principles of assessing damages for personal injury, including economic loss and non-economic loss, ensuring that compensation was fair and just, reflecting the actual loss suffered.

The Court found in favour of Ms. Zhang, ordering the defendant to pay damages. The quantum of damages was determined after a careful assessment of all the evidence, with specific amounts allocated for past and future economic loss, as well as general damages for pain and suffering.

Orders