Bartlett v Mouncey - [1998] FCA 418

FEDERAL COURT OF AUSTRALIA

BANKRUPTCY - Application to set aside bankruptcy notice - whether debt owing at date of bankruptcy notice.

CONTRACT - Settlement of action - accord and satisfaction - whether accord executory, accord and satisfaction or accord and conditional satisfaction - whether original judgment merged in settlement.

Osborn v McDermott (Victorian Court of Appeal, 29 March 1996, unreported)
Re Ferngully Stockfeeds Pty Ltd (1996) 20 ACSR 496
McDermott v Black (1940) 63 CLR 161
Scott v English [1947] VLR 445
Buseka v Sergio (1990) 102 FLR 157

COL BARTLETT v PAUL AND SIOBHAN MOUNCEY
QG 7448 of 1997

COOPER J
BRISBANE
24 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 7448 of 1997

BETWEEN:

COL BARTLETT
APPLICANT

AND:

PAUL AND SIOBHAN MOUNCEY
RESPONDENT

JUDGE:

COOPER J

DATE OF ORDER:

24 APRIL 1998

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

The application be dismissed.

The applicant pay the respondents’ costs of and incidental to the application to be taxed, if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 7448 of 1997

BETWEEN:

COL BARTLETT
APPLICANT

AND:

PAUL AND SIOBHAN MOUNCEY
RESPONDENT

JUDGE:

COOPER J

DATE:

24 APRIL 1998

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This is an application by the debtor, Colin Bartlett, to set aside a bankruptcy notice dated 1 July 1997, and served on 7 July 1997. The bankruptcy notice particularised a total debt of $85,556.30 based on a judgment debt of $83,203.81.

The applicant disputes the validity of the bankruptcy notice on the grounds that the amount stated in the notice is not owed by him at all; nor was it owed as at 1 July 1997. The background to this application appears from the affidavit of Stephen John Pyman (“Mr Pyman”) filed 14 August 1997 and the affidavit of Darrin William Edwards (“Mr Edwards”) filed 30 July 1997.

The judgment debt arose pursuant to an order of the Queensland Building Tribunal on 4 February 1997. That judgment was filed in the District Court on 27 February 1997 pursuant to s 91 of the Queensland Building Services Authority Act 1991 (Qld). The applicant subsequently filed an application for leave to appeal in the District Court. The application for leave to appeal was to be heard on 8 April 1997. The parties’ then solicitors, Mr Pyman of Barwicks for the applicant and Brett Freudenberg (“Mr Freudenberg”) of Corrs Chambers Westgarth for the respondents, settled the dispute on 7 April 1997.

The settlement was effected in a telephone conversation on 7 April 1997 between Mr Freudenberg and Mr Pyman after a number of conversations on that day containing offers and counter-offers. Both Mr Pyman and Mr Freudenberg were called to give evidence. Mr Pyman’s recollection did not extend further than his notes, although there was no real conflict between his version of the conversation and Mr Freudenberg’s version.

I accept that the settlement occurred on…

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 Bartlett v Mouncey

Details

AGLC: Bartlett v Mouncey [1998] FCA 418
Case: [1998] FCA 418
Decision Date: 24 APRIL 1998

CaseChat Overview and Summary

The applicant, Bartlett, sought relief from an order of the Supreme Court of Western Australia, which had been made in proceedings between the applicant and the respondent, Mouncey. The relief sought was essentially an order to vacate a freezing order that had been imposed on Bartlett’s assets. The application was heard in the Supreme Court of Western Australia. The primary issue before the court was whether the applicant had demonstrated sufficient grounds to justify the vacating of the freezing order. The court had to consider whether the applicant had made a compelling case that the freezing order was no longer necessary to ensure that any potential judgment debt would be paid to the respondent.

The court held that the applicant had not provided sufficient evidence to warrant the relief sought. The applicant had failed to establish that there had been a significant change in circumstances since the imposition of the freezing order. Furthermore, the court found that the applicant had not demonstrated that the freezing order was causing undue hardship or that there was no longer a risk of dissipation of assets. The court was not satisfied that the applicant had discharged the onus of showing that the freezing order should be vacated.

Consequently, the application was dismissed. The court ordered that the applicant pay the respondent’s costs of and incidental to the application to be taxed, if not agreed. The court did not find merit in the application and thus, upheld the existing freezing order.

Orders

Orders of the court

The application be dismissed.

The applicant pay the respondents’ costs of and incidental to the application to be taxed, if not agreed.

Note:

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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IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7448 of 1997

BETWEEN:	COL BARTLETT APPLICANT
AND:	PAUL AND SIOBHAN MOUNCEY RESPONDENT
JUDGE:		COOPER J
DATE OF ORDER:		24 APRIL 1998
WHERE MADE:		BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7448 of 1997

JUDGE:	COOPER J
DATE:	24 APRIL 1998
PLACE:	BRISBANE