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Beaman v Bond

Beaman v Bond

Case [2013] FCA 534 31 May 2013

Jurisdiction

Bankruptcy

Cross-vesting

Special Federal Matter

Bankruptcy & Insolvency Law

Family Law

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FEDERAL COURT OF AUSTRALIA
Beaman v Bond, in the matter of an authority under section 188 of the Bankruptcy Act 1966 (Cth) signed by Craig David Bond [2013] FCA 534

Citation: Beaman v Bond, in the matter of an authority under section 188 of the Bankruptcy Act 1966 (Cth) signed by Craig David Bond [2013] FCA 534

Parties: DIANNE ELIZABETH BEAMAN v CRAIG DAVID BOND and CHRISTOPHER MICHAEL WILLIAMSON AND DAVID ASHLEY NORMAN HURT (IN THEIR CAPACITIES AS CONTROLLING TRUSTEES OF THE AFFAIRS OF CRAIG DAVID BOND)

File number: WAD 147 of 2013

Judge: MCKERRACHER J

Date of judgment: 31 May 2013

Catchwords:
BANKRUPTCY AND INSOLVENCY – application pursuant to s 208 of the Bankruptcy Act 1966 (Cth) to release control of property from trustee – whether entry into personal insolvency agreement by former de facto partner an abuse of Part X to frustrate Family Court proceedings

PRACTICE AND PROCEDURE – application under s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) to cross-vest s 208 Bankruptcy Act application to the Family Court of Western Australia – whether Family Court of Western Australia has jurisdiction to hear to determine s 208 Bankruptcy Act - whether exclusivity under s 27 of the Bankruptcy Act impliedly repeals s 39(2) in so far as state court's exercising federal jurisdiction in bankruptcy - whether the power to cross-vest limited or impliedly repealed by transfer scheme in the Bankruptcy Act – whether in the interests of justice to exercise discretion to cross-vest - special considerations applicable to a ‘special federal matter’

WORDS AND PHRASES – ‘special federal matter’

Legislation: Bankruptcy Act 1966 (Cth) s 208
Federal Court of Australia Act 1976 (Cth) s 37M
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ss 3(2), 4(3), 5(1), 5(4), 6

Cases cited:
21st Century Promotions v Telstra Corporation Ltd [1998] SASC 6929
Re Boscolo; Ex parte Botany Council (1996) 62 FCR 397
Combis v Jensen (No 2) (2009) 181 FCR 178
Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130
In the Estate of Killington, Gary Milton Ex Parte Chisholm, Philip Anthony v The Official Trustee of the estate of Killington, Gary Milton [1998] FCA 1474
Matyear v Prismex Technologies Pty Ltd (2006) 60 ACSR 210
McCormack v Newburg Enterprises Pty Ltd [2002] FCA 457
Meriton Apartments Pty Ltd v Industrial Court of New South Wales (2008) 171 FCR 380
Mitchell v McGillivray (2001) 107 FCR 161
Overlook v Foxtel [2001] NSWSC 682
P1 v Australian Crime Commission [2012] SASC 229

Porteous v Donnelly (Trustee), in the matter of Hancock (deceased) (2003) 200 ALR 274
Pridmore v Magenta Nominees Pty Ltd [1998] WASC 318

Ross v Jones; in the matter of McCloskey [2001] FCA 797
Re Sabri; Ex parte Sabri v Brien (1995) 60 FCR 131
Re Sharpe, John Lawrence Ex Parte Powell, Kerrie Patricia v Donnelly, Max Christopher [1996] FCA 896
Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261

Date of hearing: 29 May 2013

Place: Perth

Division: GENERAL DIVISION

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 Beaman v Bond

Details

AGLC: Beaman v Bond [2013] FCA 534
Case: [2013] FCA 534
Decision Date

CaseChat Overview and Summary

Dianne Beaman applied to the Federal Court of Australia to cross-vest proceedings to the Family Court of Western Australia. Those proceedings were brought under section 208 of the Bankruptcy Act 1966 (Cth) to challenge the validity of a Personal Insolvency Agreement (PIA) entered into by Craig Bond, who was already bankrupt. The PIA was intended to be approved by the creditors of Mr Bond, most notably his brother, but not before Ms Beaman sought to have the PIA set aside. Ms Beaman contends that Mr Bond entered into the PIA in bad faith and to frustrate her attempts to seek financial relief from Mr Bond in the Family Court of Western Australia. The Family Court of Western Australia has been engaged in that litigation since 2010. The application to cross-vest was opposed by Mr Bond and the trustees of his bankrupt estate. A separate application by Mr Bond to summarily dismiss Ms Beaman's application was also opposed by Ms Beaman. The court was required to determine whether it was appropriate to exercise the discretion to cross-vest proceedings to the Family Court of Western Australia and whether there were any grounds to summarily dismiss Ms Beaman's application. The court found that it was appropriate to cross-vest the proceedings to the Family Court of Western Australia. It also found that there were no grounds to summarily dismiss the application. It follows that the proceedings, including Mr Bond's interlocutory application for summary dismissal, are cross-vested to the Family Court of Western Australia and the costs of that proceeding are reserved to be determined by that Court.

Orders