Scook v Sims Construction Pty Ltd [2004] FCAFC 306

FEDERAL COURT OF AUSTRALIA

Scook v Sims Construction Pty Ltd [2004] FCAFC 306 BANKRUPTCY – appeal – bankruptcy notice based on consent judgment – whether Federal Magistrate in error of law in construing deed of settlement as an accord executory and not an accord and satisfaction of the judgment – provision for forfeiture of shares by third parties - relevance of context BANKRUPTCY – appeal – bankruptcy notice – invalidity - notice given by one of several joint creditors Black's Law Dictionary 7th edn

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 cited Australian Hardwoods Pty Ltd v Commissioner for Railways [1961] 1 All ER 737 cited Australian Workers' Union v Bowen (1946) 72 CLR 575 applied Dudzinski v Kellow [2003] FCAFC 207 followed McDermott v Black (1940) 63 CLR 161 considered DEAN GEORGE SCOOK v SIMS CONSTRUCTION PTY LTD W109 OF 2004 RD NICHOLSON, JACOBSON and BENNETT JJ 18 NOVEMBER 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W109 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: DEAN GEORGE SCOOK

APPELLANT

AND: SIMS CONSTRUCTION PTY LTD

RESPONDENT

JUDGES: RD NICHOLSON, JACOBSON and BENNETT JJ

DATE OF ORDER: 18 NOVEMBER 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W109 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: DEAN GEORGE SCOOK

APPELLANT

AND: SIMS CONSTRUCTION PTY LTD

RESPONDENT

JUDGES: RD NICHOLSON, JACOBSON and BENNETT JJ