Beames v Qld; Beames v Christiansen - [2003] QCA 39

SUPREME COURT OF QUEENSLAND

CITATION:

Beames v Qld & Ors; Beames v Christiansen & Ors [2003] QCA 39

PARTIES:

BEAMES, Douglas Macleod
(applicant/appellant)
v
STATE OF QUEENSLAND
(first respondent/applicant)
BRISBANE CITY COUNCIL
(second respondent/second respondent)
LOREN R LEADER, REGISTRAR OF TITLES
(third respondent/applicant)
GEOFFREY IAN RIGBY
(fourth respondent)
NATIONAL AUSTRALIA BANK
(fifth respondent)

BEAMES, Douglas Macleod
(applicant/appellant)
v
MYRA BEBE CHRISTIANSEN & FREDDY GIUSTO FRAGIACOMO
(first respondent/first respondent)
PERPETUAL TRUSTEES AUSTRALIA LTD
(second respondent/second respondent)
MAX LOCKE, REGISTRAR OF TITLES
(third respondent/applicant)

FILE NO/S:

CA No 2625 of 2002
CA No 4191 of 2002
SC No 1161 of 2002

DIVISION:

Court of Appeal

PROCEEDINGS:

Miscellaneous Applications – Civil

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED EX TEMPORE ON:

13 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2003

JUDGES:

McMurdo P, Williams JA and Mullins J
Separate reasons for judgment of each member of the Court; each concurring as to the order made

ORDER:

In each appeal, the appeals against the respondents are struck out with costs of this application and the appeal

CATCHWORDS:

BANKRUPTCY – APPEALS – SETTING ASIDE, STAY OR OBJECTIONS – GENERALLY – where trustees in bankruptcy discontinuing appeal – whether appellant has standing - whether appeal should be stayed or struck out pursuant to s 63 of the Bankruptcy Act 1966 (Cth)

COSTS – SECURITY FOR COSTS – OTHER MATTERS – whether appellant should provide security for the costs of the appeal

Bankruptcy Act 1966 (Cth), s 60, s 62, s 63, s 178

Theissbacher v MacGregor Garrick & Co (1993) 2Qd R 223, considered
Finikiotis v Knight Frank (SA) P/L [2001] FCA 1733, considered

COUNSEL:

The applicant/ appellant appeared on his own behalf
R Jones for the first respondent and third respondent in CA No 2625 of 2002 and the third respondent/ applicant in CA No 4191 of 2002

E Morzone for the second respondent in CA No 2625 of 2002

G Beacham for the fifth respondent in CA No 2625 of 2002
I Innes for the first and second respondent in CA No 4191 of 2002
A Lavin for the fourth respondent in CA No 2625 of 2002

SOLICITORS:

The applicant/ appellant appeared on his own behalf
C W Lohe, Crown Solicitor, for the first respondent and third respondent in CA No 2625 of 2002 and the third respondent in CA No 4191 of 2002
Brisbane City Council for the second respondent/applicant in CA No 2625 of 2002
Thynne & McCartney for the fifth respondent in CA No 2625 of 2002
Blake Dawson Waldron for the first and second respondent in CA NO 4191 of 2002
Carne Reidy Herd for the fourth respondent in CA No 2625 of 2002

THE PRESIDENT: The appeals the subject of this application were brought by Mr Beames, a solicitor who is representing himself. The various applicants apply to strike out both appeals under s 60 Bankruptcy Act 1966 (Cth) ('the Act') on the grounds that the appellant is bankrupt and therefore has no standing to continue the…

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: [2003] QCA 39
Decision Date: 13 February 2003

CaseChat Overview and Summary

The appeals in Beames v Qld and Beames v Christiansen involved the appellant, Beames, who had been declared bankrupt. The disputes arose from the trustees in bankruptcy discontinuing their appeal and the appellant's standing to continue the appeal. The legal issues that needed to be decided included whether the appellant had standing to pursue the appeal after the trustees in bankruptcy had discontinued their involvement and whether the appeals should be stayed or struck out under section 63 of the Bankruptcy Act 1966 (Cth). Another matter that was considered was whether the appellant should provide security for the costs of the appeal.

The court considered that the trustees in bankruptcy had the exclusive right to pursue appeals in bankruptcy matters, and therefore, the appellant did not have standing to continue the appeal after the trustees had discontinued their involvement. The court held that the appeals should be struck out under section 63 of the Bankruptcy Act, as the appellant did not have the necessary standing to continue the appeal. The court also found that the appellant should provide security for the costs of the appeal, as the trustees had incurred costs in the proceedings.

In conclusion, the appeals were struck out with costs of the application and the appeal. The court's decision emphasised the importance of the trustees in bankruptcy having the exclusive right to pursue appeals in bankruptcy matters, and the need for the appellant to provide security for the costs of the appeal.

Orders

Orders of the court

In each appeal, the appeals against the respondents are struck out with costs of this application and the appeal

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:	Beames v Qld & Ors; Beames v Christiansen & Ors [2003] QCA 39
PARTIES:	BEAMES, Douglas Macleod (applicant/appellant) v STATE OF QUEENSLAND (first respondent/applicant) BRISBANE CITY COUNCIL (second respondent/second respondent) LOREN R LEADER, REGISTRAR OF TITLES (third respondent/applicant) GEOFFREY IAN RIGBY (fourth respondent) NATIONAL AUSTRALIA BANK (fifth respondent) BEAMES, Douglas Macleod (applicant/appellant) v MYRA BEBE CHRISTIANSEN & FREDDY GIUSTO FRAGIACOMO (first respondent/first respondent) PERPETUAL TRUSTEES AUSTRALIA LTD (second respondent/second respondent) MAX LOCKE, REGISTRAR OF TITLES (third respondent/applicant)
FILE NO/S:	CA No 2625 of 2002 CA No 4191 of 2002 SC No 1161 of 2002
DIVISION:	Court of Appeal
PROCEEDINGS:	Miscellaneous Applications – Civil
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED EX TEMPORE ON:	13 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	13 February 2003
JUDGES:	McMurdo P, Williams JA and Mullins J Separate reasons for judgment of each member of the Court; each concurring as to the order made
ORDER:	In each appeal, the appeals against the respondents are struck out with costs of this application and the appeal
CATCHWORDS:	BANKRUPTCY – APPEALS – SETTING ASIDE, STAY OR OBJECTIONS – GENERALLY – where trustees in bankruptcy discontinuing appeal – whether appellant has standing - whether appeal should be stayed or struck out pursuant to s 63 of the Bankruptcy Act 1966 (Cth) COSTS – SECURITY FOR COSTS – OTHER MATTERS – whether appellant should provide security for the costs of the appeal Bankruptcy Act 1966 (Cth), s 60, s 62, s 63, s 178 Theissbacher v MacGregor Garrick & Co (1993) 2Qd R 223, considered Finikiotis v Knight Frank (SA) P/L [2001] FCA 1733, considered
COUNSEL:	The applicant/ appellant appeared on his own behalf R Jones for the first respondent and third respondent in CA No 2625 of 2002 and the third respondent/ applicant in CA No 4191 of 2002 E Morzone for the second respondent in CA No 2625 of 2002 G Beacham for the fifth respondent in CA No 2625 of 2002 I Innes for the first and second respondent in CA No 4191 of 2002 A Lavin for the fourth respondent in CA No 2625 of 2002
SOLICITORS:	The applicant/ appellant appeared on his own behalf C W Lohe, Crown Solicitor, for the first respondent and third respondent in CA No 2625 of 2002 and the third respondent in CA No 4191 of 2002 Brisbane City Council for the second respondent/applicant in CA No 2625 of 2002 Thynne & McCartney for the fifth respondent in CA No 2625 of 2002 Blake Dawson Waldron for the first and second respondent in CA NO 4191 of 2002 Carne Reidy Herd for the fourth respondent in CA No 2625 of 2002