Barton v Atlantic 3 Financial (Aust) Pty Ltd - [2004] QSC 376

SUPREME COURT OF QUEENSLAND

CITATION:

Barton v Atlantic 3 Financial (Aust) Pty Ltd [2004] QSC 376

PARTIES:

NATHANIEL KELBURN DUNBAR BARTON
(Plaintiff)
v
ATLANTIC 3 FINANCIAL (AUST) PTY LTD
ACN 056 262 723
(IN LIQUIDATION)

(Defendant)

FILE NO/S:

S6621 of 2003

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

3 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

27 August 2004

JUDGE:

Moynihan J

ORDER:

1.   A declaration that the assignment, pursuant to a deed dated 9 January 2004, by the defendant to Atlantic 3 Funds Management Limited ACN 092 110 097 (“A3FM”) of the defendant’s choses in action as regards the plaintiff in respect of such choses in action after:

a.   the taking into account of the amount(s) due from the defendant to the plaintiff, both in his own right and as assignee (the amount(s) so due including any amount(s) that may, in this proceeding, be determined as payable by the defendant to the plaintiff for damages, interest or costs); and

b.   the setting-off of the amount(s) so due from the defendant to the plaintiff against the amount(s) due by the plaintiff in respect of such choses in action.

2.   That:

a.   this proceeding be re-activated under Practice Direction 4 of 2002;

b.   A3FM be included as the second defendant to this proceeding (pursuant to rule 69 of the Uniform Civil Procedure Rules);

c.   Atlantic 3 – Financial (Aust) Pty Ltd (in liquidation) be hereafter styled the first defendant in this proceeding;

d.   the plaintiff have leave (under section 4711B of the Corporations Act) to proceed with his claim herein against the first defendant, together with any further claims he may make against the first defendant by way of an amended claim;

e.   the plaintiff have leave (under rule 377 of the Uniform Civil Procedure Rules) to amend his claim herein to include a further claim against the first defendant for damages for breach of duty under section 85 of the Property Law Act 1974 (Qld) as a “person damnified” within the meaning of that section; and

f.    the parties’ costs of and incidental to this application be their respective costs in the cause.

CATCHWORDS:

DEEDS – FORM AND EXECUTION – whether the plaintiff was only effective to assign to the defendant any balance due by the plaintiff

Corporations Act 2001 (Cth)
Insolvency Act 1986 (UK)
Property Law Act 1974 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Atlantic 3-Financial (Aust) Pty ltd v Deckhurst Pty Ltd [2003] QSC 182
Austral Brick Co Pty Ltd v Falgap Constructions Pty Ltd (1990) 21 NSWLR 389
Citicorp Australia Ltd & Anors v Official Trustee and Bankruptcy & Anor (1996) 71 FCR 550
Collins & Anor v G Collins & Sons Pty Ltd 9 ACLR 58
GM and AM Pearce & Co Pty Ltd v RGM Australia Pty Ltd [1998] 4 VR 888 (Court of Appeal)
Gyre v MacIntyre (1991) 171 CLR 609
Higton Enterprises Pty Ltd v BFC Finance Limited 1997 1Qd.R 168
Krextile Holdings Pty…

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.

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Details

Case: [2004] QSC 376
Decision Date: 3 November 2004

CaseChat Overview and Summary

The plaintiff, Barton, brought an action against Atlantic 3 Financial (Aust) Pty Ltd (in liquidation), which was subsequently named the first defendant. The matter also involved Atlantic 3 Funds Management Limited, referred to as the second defendant. The dispute centred around the interpretation of a deed dated 9 January 2004, through which the first defendant assigned its choses in action to the second defendant. Barton contended that the assignment did not fully transfer the balance due from the first defendant to him, both as a creditor and as an assignee. The court was tasked with determining the exact nature of the assignment and whether it effectively transferred all amounts due by the first defendant to Barton.

The legal issues that the court had to resolve included whether the assignment deed correctly identified the choses in action and if it allowed for the full transfer of any balances due from the first defendant to Barton. Additionally, the court had to consider the implications of the assignment on any amounts owed by the first defendant to Barton, including any damages, interest, or costs that might be determined in Barton's favour. The court also needed to address procedural matters, such as the reactivation of the proceeding, the inclusion of the second defendant, and the granting of leave to amend the plaintiff's claim.

In its decision, the court determined that the assignment deed did not fully transfer all the choses in action to the second defendant. It was held that the assignment only permitted the transfer of any balance due by the first defendant to Barton after accounting for all amounts due from the first defendant to Barton, including any damages, interest, or costs. The court further found that the plaintiff was entitled to have the proceeding reactivated, with the second defendant included as a party, and to amend his claim to include a claim for damages for breach of duty under the Property Law Act 1974. The court granted these procedural requests and ordered the parties' costs of and incidental to the application to be their respective costs in the cause.

The court made several orders, including a declaration regarding the nature of the assignment, the reactivation of the proceeding, the inclusion of the second defendant, the granting of leave to amend the claim, and the allocation of costs. This decision clarified the extent of the assignment and allowed Barton to pursue his claims against the first defendant and seek damages for breach of duty.

Orders

Orders of the court

1. A declaration that the assignment, pursuant to a deed dated 9 January 2004, by the defendant to Atlantic 3 Funds Management Limited ACN 092 110 097 (“A3FM”) of the defendant’s choses in action as regards the plaintiff in respect of such choses in action after:

a. the taking into account of the amount(s) due from the defendant to the plaintiff, both in his own right and as assignee (the amount(s) so due including any amount(s) that may, in this proceeding, be determined as payable by the defendant to the plaintiff for damages, interest or costs); and

b. the setting-off of the amount(s) so due from the defendant to the plaintiff against the amount(s) due by the plaintiff in respect of such choses in action.

2. That:

a. this proceeding be re-activated under Practice Direction 4 of 2002;

b. A3FM be included as the second defendant to this proceeding (pursuant to rule 69 of the Uniform Civil Procedure Rules);

c. Atlantic 3 – Financial (Aust) Pty Ltd (in liquidation) be hereafter styled the first defendant in this proceeding;

d. the plaintiff have leave (under section 4711B of the Corporations Act) to proceed with his claim herein against the first defendant, together with any further claims he may make against the first defendant by way of an amended claim;

e. the plaintiff have leave (under rule 377 of the Uniform Civil Procedure Rules) to amend his claim herein to include a further claim against the first defendant for damages for breach of duty under section 85 of the Property Law Act 1974 (Qld) as a “person damnified” within the meaning of that section; and

f. the parties’ costs of and incidental to this application be their respective costs in the cause.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Barton v Atlantic 3 Financial (Aust) Pty Ltd [2004] QSC 376
PARTIES:	NATHANIEL KELBURN DUNBAR BARTON (Plaintiff) v ATLANTIC 3 FINANCIAL (AUST) PTY LTD ACN 056 262 723 (IN LIQUIDATION) (Defendant)
FILE NO/S:	S6621 of 2003
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	3 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	27 August 2004
JUDGE:	Moynihan J
ORDER:	1. A declaration that the assignment, pursuant to a deed dated 9 January 2004, by the defendant to Atlantic 3 Funds Management Limited ACN 092 110 097 (“A3FM”) of the defendant’s choses in action as regards the plaintiff in respect of such choses in action after: a. the taking into account of the amount(s) due from the defendant to the plaintiff, both in his own right and as assignee (the amount(s) so due including any amount(s) that may, in this proceeding, be determined as payable by the defendant to the plaintiff for damages, interest or costs); and b. the setting-off of the amount(s) so due from the defendant to the plaintiff against the amount(s) due by the plaintiff in respect of such choses in action. 2. That: a. this proceeding be re-activated under Practice Direction 4 of 2002; b. *A3FM be included as the second defendant to this proceeding (pursuant to rule 69 of the Uniform Civil Procedure Rules);* c. Atlantic 3 – Financial (Aust) Pty Ltd (in liquidation) be hereafter styled the first defendant in this proceeding; d. the plaintiff have leave (under section 4711B of the Corporations Act) to proceed with his claim herein against the first defendant, together with any further claims he may make against the first defendant by way of an amended claim; e. the plaintiff have leave (under rule 377 of the Uniform Civil Procedure Rules) to amend his claim herein to include a further claim against the first defendant for damages for breach of duty under section 85 of the Property Law Act 1974 (Qld) as a “person damnified” within the meaning of that section; and f. the parties’ costs of and incidental to this application be their respective costs in the cause.
CATCHWORDS:	DEEDS – FORM AND EXECUTION – whether the plaintiff was only effective to assign to the defendant any balance due by the plaintiff Corporations Act 2001 (Cth) Insolvency Act 1986 (UK) Property Law Act 1974 (Qld) Uniform Civil Procedure Rules 1999 (Qld) Atlantic 3-Financial (Aust) Pty ltd v Deckhurst Pty Ltd [2003] QSC 182 Austral Brick Co Pty Ltd v Falgap Constructions Pty Ltd (1990) 21 NSWLR 389 Citicorp Australia Ltd & Anors v Official Trustee and Bankruptcy & Anor (1996) 71 FCR 550 Collins & Anor v G Collins & Sons Pty Ltd 9 ACLR 58 GM and AM Pearce & Co Pty Ltd v RGM Australia Pty Ltd [1998] 4 VR 888 (Court of Appeal) Gyre v MacIntyre (1991) 171 CLR 609 Higton Enterprises Pty Ltd v BFC Finance Limited 1997 1Qd.R 168 Krextile Holdings Pty…