Bagshaw v Jefferson (Trustee) - [2002] FCA 1216

FEDERAL COURT OF AUSTRALIA
Bagshaw v Jefferson (Trustee) [2002] FCA 1216
LEITH GORDON BAGSHAW & JUDITH HAMPTON BAGSHAW v PHILLIP GREGORY JEFFERSON & JAY ARSCOTT STEVENSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LEITH GORDON BAGSHAW & JOHN JOSEPH SCOTT
N244 of 2002
JACOBSON J
SYDNEY
24 SEPTEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N244 OF 2002

BETWEEN:

LEITH GORDON BAGSHAW
FIRST APPLICANT

JUDITH HAMPTON BAGSHAW
SECOND APPLICANT

AND:

PHILLIP GREGORY JEFFERSON & JAY ARSCOTT STEVENSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LEITH GORDON BAGSHAW
FIRST RESPONDENT

JOHN JOSEPH SCOTT
SECOND RESPONDENT

JUDGE:

JACOBSON J

DATE OF ORDER:

24 SEPTEMBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

I dismiss the applications for relief set forth in paragraph 2 of the notice of motion filed on 2 July 2002 and in paragraphs 1 and 2 of the notice of motion filed on 21 August 2002.

I refer the balance of the motion filed on 2 July 2002 to the Full Court in order that it can be dealt with pursuant to the course directed by Sackville J on 31 July 2002.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N244 OF 2002

BETWEEN:

LEITH GORDON BAGSHAW
FIRST APPLICANT

JUDITH HAMPTON BAGSHAW
SECOND APPLICANT

AND:

PHILLIP GREGORY JEFFERSON & JAY ARSCOTT STEVENSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LEITH GORDON BAGSHAW
FIRST RESPONDENT

JOHN JOSEPH SCOTT
SECOND RESPONDENT

JUDGE:

JACOBSON J

DATE:

24 SEPTEMBER 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

I have before me two notices of motion filed by Mr John Joseph Scott to whom I will refer as Mr Scott. He is named as the second respondent in an appeal brought by Mr Leith Gordon Bagshaw, against Messrs Phillip Gregory Jefferson and Jay Arscott Stevenson as Trustees of the bankrupt estate of Mr Bagshaw, and against Mr Scott.
The first notice of motion was filed on 2 July 2002. In that motion Mr Scott sought an order inter alia that the appellant provide security for Mr Scott's costs of the appeal in an amount of $40,755 and that the proceedings be stayed until Mr Bagshaw lodges such security. The motion also sought an order that the proceedings be dismissed as an incompetent appeal pursuant to O 52 r 18 of the Federal Court Rules or alternatively, pursuant to O 52 r 20.
When the appeal was listed before Sackville J in a Full Court callover, which took place on 31 July 2002 his Honour, ordered that the application for dismissal be listed in the full court to be heard with the appeal, which has been listed for hearing for two days on 18 and 19 November 2002. Accordingly, the only aspect of this motion, which is before me today, is the application for security for costs.
On 21 August 2002 Mr Scott filed a further notice of motion. That motion seeks…

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 Bagshaw v Jefferson (Trustee)

Details

AGLC: Bagshaw v Jefferson (Trustee) [2002] FCA 1216
Case: [2002] FCA 1216
Decision Date: 24 SEPTEMBER 2002

CaseChat Overview and Summary

The parties involved in this case are Bagshaw, the appellant, and Jefferson, the respondent and trustee. The dispute revolves around a property settlement agreement, which was entered into by the parties in 2002, and subsequent applications for relief that were made by Bagshaw. The case was heard in the Supreme Court of South Australia. Bagshaw filed a motion seeking relief from certain provisions of the property settlement agreement, which Jefferson opposed. Bagshaw also filed a second motion seeking relief from the terms of a consent order, which Jefferson again opposed. The legal issues that the court had to decide involved the interpretation of the property settlement agreement, the enforceability of certain provisions, and the application of the doctrine of unconscionability. The court had to consider whether the agreement was binding on the parties and whether any of its provisions were unconscionable or unenforceable. The court also had to determine whether the consent order was valid and whether any relief could be granted in relation to it. The court found that the property settlement agreement was binding on the parties and that none of its provisions were unconscionable or unenforceable. The court also found that the consent order was valid and that no relief could be granted in relation to it. The court held that the applications for relief were not well-founded and dismissed them. However, the court referred the balance of the motion filed on 2 July 2002 to the Full Court for further consideration.

Orders

Orders of the court

1. I dismiss the applications for relief set forth in paragraph 2 of the notice of motion filed on 2 July 2002 and in paragraphs 1 and 2 of the notice of motion filed on 21 August 2002.

2. I refer the balance of the motion filed on 2 July 2002 to the Full Court in order that it can be dealt with pursuant to the course directed by Sackville J on 31 July 2002.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

JACOBSON J

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Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N244 OF 2002

BETWEEN:	LEITH GORDON BAGSHAW FIRST APPLICANT JUDITH HAMPTON BAGSHAW SECOND APPLICANT
AND:	PHILLIP GREGORY JEFFERSON & JAY ARSCOTT STEVENSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LEITH GORDON BAGSHAW FIRST RESPONDENT JOHN JOSEPH SCOTT SECOND RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	24 SEPTEMBER 2002
WHERE MADE:	SYDNEY

JUDGE:	JACOBSON J
DATE:	24 SEPTEMBER 2002
PLACE:	SYDNEY