Perera v Genworth Financial Mortgage Insurance Pty Limited, in the matter of Perera

• Jurisdiction: Australia Federal only
• Judgment Date: 10 January 2020
• Neutral Citation: [2020] FCA 11
• Court: Federal Court
• Date: 10 January 2020

FEDERAL COURT OF AUSTRALIA

Perera v Genworth Financial Mortgage Insurance Pty Limited, in the matter of Perera [2020] FCA 11

File number(s):	NSD 1378 of 2019
Judge(s):	FARRELL J
Date of judgment:	10 January 2020
Legislation:	Bankruptcy Act 1966 (Cth) ss 30(1),40(1)(g), 41(5) and 41(6) Uniform Civil Procedure Rules 2005 (NSW) r 42.19
Cases cited:	Genworth Financial Mortgage Insurance Pty Limited v Hodder Rook & Associates Pty Limited [2010] NSWSC 1043 Genworth Financial Mortgage Insurance Pty Limited v Hodder Rook & Associates Pty Limited [2017] NSWSC 640 Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 Perera v Australian Securities and Investments Commission, in the matter of Hodder Rook & Associates Pty Limited [2019] FCA 2015 Perera v Genworth Financial Mortgage Insurance Pty Ltd [2016] NSWCA 53 Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 Perera v Genworth Financial Mortgage Insurance Pty Ltd [2018] NSWSC 448 Perera v Genworth Financial Mortgage Insurance Pty Ltd (No.2) [2018] NSWSC 1577 Perera v Genworth Financial Mortgage Insurance Pty Ltd t/a Genworth [2015] NSWSC 1357
Date of hearing:	11 December 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Category:	No Catchwords
Number of paragraphs:	25
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr ML Rose
Solicitor for the Respondent:	Hicksons Lawyers

ORDERS

		NSD 1378 of 2019
IN THE MATTER OF MADURA PERERA
BETWEEN:	MADURA PERERA Applicant
AND:	GENWORTH FINANCIAL MORTGAGE INSURANCE PTY LIMITED Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	10 January 2020

THE COURT ORDERS THAT:

1. The application to set aside BN 242810 issued on 7 August 2019 is dismissed.

2. The applicant pay the respondent’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1. By an application filed on 27 August 2019, Madura Perera, seeks orders setting aside an amended bankruptcy notice BN 242810 which was issued at the request of the respondent, Genworth Financial Mortgage Insurance Pty Ltd. In terms, Mr Perera sought orders as follows:

1. That bankruptcy notice number 242810 issued on 7 August 2019 (Bankruptcy Notice), which was served on applicant on 8 August 2019, be set aside pursuant to section 30(1) of the Bankruptcy Act 1966 (Cth) on the following grounds under section 41 (6A)(b) of the Bankruptcy Act.

2. The applicant has paid/set off the debt alleged in the Bankruptcy Notice.

3. The applicant does not owe the debt alleged in the Bankruptcy Notice.

4. …

5. …

6. Order that the respondent to fully comply with the orders of the Supreme Court of NSW proceeding number 2008/00290472 subsequent to the Notice of Discontinuance filed on 4 April 2017 pursuant to section 30(1) of the Bankruptcy Act 1966 (Cth).

7. Order that the time for compliance with Bankruptcy Notice Number 242810 issued on 7 August 2019 which was served on applicant on 8 August 2019 be extended up to and including 21 days after the respondent fully complied with the orders of the Supreme Court of NSW Proceeding number 2008/00290472 subsequent to the Notice of Discontinuance filed on 4 April 2017 pursuant to section 30(1) of the Bankruptcy Act 1966 (Cth).

8. Order that the respondent to pay costs of this application pursuant to section 32 of the Bankruptcy Act 1966 (Cth)

9. Any other order that the court pleases pursuant to section 30(1) of the Bankruptcy Act 1966 (Cth)

2. The bankruptcy notice claims payment of a debt of $47,375.45. That debt is founded on a lump sum costs order made by Garling J in the Supreme Court of New South Wales on 19 October 2018 (the Genworth costs order).

Background

3. The parties have a lengthy litigation history going back to at least 2008, when Genworth commenced proceedings in the Supreme Court (numbered 2008/290472) against Hodder Rook & Associates Pty Ltd (the HRA proceeding); Mr Perera referred to these proceedings in his submissions as the “foundation proceedings”. Mr Perera was the sole director of Hodder Rook. The HRA proceeding concerned valuations of land produced by Hodder Rook which were intended to be relied on by Genworth in connection with a mortgage. Genworth relied on those valuations and made a loss on transactions, leading it to allege that valuations had been prepared negligently by Hodder Rook.

4. Mr Perera and Genworth have filed with the Court an agreed chronology setting out the litigation history since the commencement of the HRA proceeding summarised generally as follows:

18 Aug 2007	Genworth commenced the HRA proceeding.
15 Sept 2010	Einstein J gave judgement in favour of Genworth in the HRA proceeding: Genworth Financial Mortgage Insurance Pty Limited v Hodder Rook & Associates Pty Limited [2010] NSWSC 1043.
12 Oct 2010	Hodder Rook lodged an appeal to the New South Wales Court of Appeal against Einstein J’s decision.
12 Aug 2011	Hodder Rook was placed in liquidation on the application of the Australian Taxation Office.
30 Sept 2011	The Court of Appeal allowed Hodder Rook’s appeal, set aside the orders made on 15 September 2010 and remitted the matter to the Supreme Court for rehearing by another judge of that Court: Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279.
31 Oct 2014	Mr Perera commenced proceedings against Genworth in the Supreme Court (proceeding number 2014/320843) (Duty of Care and Defamation proceeding).
18 Sept 2015	On an application by Genworth, Slattery J struck out the Duty of Care and Defamation proceeding: Perera v Genworth Financial Mortgage Insurance Pty Ltd t/a Genworth [2015] NSWSC 1357.
22 Mar 2016	On application by Mr Perera, the Court of Appeal granted Mr Perera leave to appeal the orders made on 18 September 2015 striking out the Duty of Care and Defamation proceeding: Perera v Genworth Financial Mortgage Insurance Pty Ltd [2016] NSWCA 53.
16 Jan 2017	Mr Perera filed an application to be joined in the HRA proceeding.
6 Feb 2017	Genworth filed an application to discontinue the HRA proceeding.
16 Feb 2017	The Court of Appeal allowed Mr Perera’s appeal in part in the Duty of Care and Defamation proceeding. The Court of Appeal ordered that the Duty of Care and Defamation proceeding be dismissed insofar as they are based on allegation of negligence. The Court of Appealed granted leave to Mr Perera to file a further amended statement of claim confined to the defamation allegations and transferred the proceeding to the District Court of New South Wales (the District Court defamation proceeding): Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19.
28 Mar 2017

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