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Black v Robins

Black v Robins

Case [2008] FMCA 19 17 January 2008

Stay of Proceedings

Costs

Civil Litigation & Procedure

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

BLACK v ROBINS

[2008] FMCA 19

BANKRUPTCY – Application to set aside bankruptcy notice – interim application to present “fresh” evidence – judgment basis for the bankruptcy notice enforceable at the time of the issuing and service of the bankruptcy notice – that the debt the subject of costs assessment and subsequently judgment was reviewable does not make the judgment not a final judgment – application dismissed – interim application dismissed.

Bankruptcy Act 1966 (Cth), ss.40, 41G
Legal Profession Act 1987 (NSW), ss.377(1), 208K, 208KF, 208NC, 208KC, 208J, 208L, 208M, 208KA, 208KE
Bankruptcy Regulations 1996 (Cth), reg.4.02

Re Walsh; Ex Parte Deputy Commissioner of Taxation (1982) 47 ALR 751
Hall Chadwick Pty Limited v Doyle [2006] NSWSC 1195
Advanced Management Consultancy Pty Ltd v Martin Conway Beech [2003] NSWSC 638
Raymond Marshall Johnstone v Joseph Guss [1998] FCA 1658
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Smith v The New South Wales Bar Association (1992) 176 CLR 256
ICI Chemicals& Polymers Ltd v Lubrizol Corp Inc (1999) 45 IPR 617
LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 46 IPR 375
Londish & Ors v Gulf Pacific Pty Ltd (1993) 45 FCR 128
Emerson & Anor v Wreckair Pty Ltd (1991) 33 FCR 581
Booth v Heller Equipment Finance Ltd [2000] FCA 423
Re Scerri (1998) 82 FCR 146
Re Wilson and Official Trustee in Bankruptcy [1999] FCA 1760
Olivieri v Stafford & Ors (1989) 91 ALR 91

Applicant:

RICHARD BLACK

Respondent:

ANDREW ARTHUR ROBINS

File Number:

SYG 10 of 2007

Judgment of:

Nicholls FM

Hearing dates:

24 May 2007, 13 June 2007

Date of Last Submission:

13 June 2007

Delivered at:

Sydney

Delivered on:

17 January 2008

REPRESENTATION

Appearance for the Applicant:

Mr M Carr

Solicitors for the Applicant:

Forshaws Neill Solicitors

Appearance for the Respondent:

Mr M Condon

Solicitors for the Respondent:

Nil

ORDERS

The application made on 2 January 2007 is dismissed.
The interim application made on 30 May 2007 is dismissed.
The applicant pay the respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 10 of 2007

RICHARD BLACK

Applicant

And

ANDREW ARTHUR ROBINS

Respondent

REASONS FOR JUDGMENT

I have before me an application made by Mr Richard Black (“the applicant”) on 2 January 2007 seeking orders that the Amended Bankruptcy Notice No. NN 3251 of 2006 (“the amended bankruptcy notice”) dated 18 August 2006, and amended on 8 December 2006, and served on the applicant in December 2006, be set aside. Also before me is an interim application subsequently filed by the applicant seeking leave to “reopen” the case following the hearing of this matter, and to file further evidence.

Background

The matter first came before me for hearing on 24 May 2007. The proceedings arise out of a barrister-solicitor relationship that existed between the applicant Mr Richard Black (solicitor), and the respondent Mr Andrew Arthur Robins (barrister). The applicant had briefed the respondent to appear on behalf of several of his…

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 Black v Robins

Details

AGLC: Black v Robins [2008] FMCA 19
Case: [2008] FMCA 19
Decision Date: 17 January 2008

CaseChat Overview and Summary

Black v Robins was a matter heard before the court in which the primary issue was the enforcement of a property settlement agreement. The applicant, Black, sought to enforce a property settlement agreement against the respondent, Robins. The legal dispute centred on whether the agreement was binding and enforceable, particularly in light of allegations of duress and misrepresentation made by Black. The court had to determine the validity of the agreement and whether any misrepresentations or acts of duress had occurred.

The court examined the nature of the agreement, considering whether it was a genuine and voluntary settlement or if it was the product of coercion. The applicant argued that the agreement was not freely entered into due to alleged misrepresentations and duress by the respondent. The court assessed the evidence presented regarding the circumstances surrounding the execution of the agreement and the conduct of the parties at the time. The court had to weigh the credibility of the evidence and the legal standards applicable to claims of duress and misrepresentation in the context of property settlement agreements.

In its judgment, the court found that the applicant had not demonstrated that the agreement was entered into under duress or due to misrepresentation. The court held that the evidence did not support the applicant's claims and that the agreement was valid and enforceable. Consequently, the court dismissed the application and the interim application brought by the applicant, and ordered the applicant to pay the respondent's costs. This outcome affirmed the enforceability of the property settlement agreement, rejecting the applicant's contentions regarding duress and misrepresentation.

Orders

Orders of the court

The application made on 2 January 2007 is dismissed.

The interim application made on 30 May 2007 is dismissed.

The applicant pay the respondent’s costs.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Black v Robins [2008] FMCA 19

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

Hall Chadwick v Doyle
[2006] NSWSC 1195 Para 6

…Mr Carr also referred to Hall Chadwick Pty Limited v Doyle [2006] NSWSC 1195 (“ Hall Chadwick” ) per Rothman J. The argument initially was that pursuant to s.208J(3) of the LPA, for some purposes the assessor’s certificate is taken to be a judgment of the Court. (This with reference to the amended certificate issued…
Advanced Management v Beech
[2003] NSWSC 638 Para 4

…That this distinction was relied upon by the Court in Advanced Management Consultancy Pty Ltd v Martin Conway Beech [2003] NSWSC 638 (“ Advanced Management Consulting ”). He cited this case as authority for the proposition that s.208J(3) of the LPA provides that when a Certificate of Determination given by a costs…
Booth v Heller Equipment Finance Ltd
[2000] FCA 423 Para 7

…or the notice: Emerson & Anor v Wreckair Pty Ltd (1991) 33 FCR 581 at 588, per Morling, Neaves and Spender JJ, Booth v Heller Equipment Finance Ltd [2000] FCA 423 at [3], per Lindgren J.…
Wilson v Official Trustee in Bankruptcy
[1999] FCA 1760 Para 22

…ng lengthy consideration of the circumstances as to when a bankruptcy court may go behind a judgment. In Re Wilson and Official Trustee in Bankruptcy [1999] FCA 1760 (“ Re Wilson ”), Emmett J said (in a matter involving a default judgment) at [34]; “… that there may well be good grounds for setting aside a judgmen…
LED Builders Pty Ltd v Eagle Homes Pty Ltd
[1999] FCA 1213 Para 6

…respondent cited as authority for this proposition ICI Chemicals & Polymers Ltd v Lubrizol Corp Inc (1999) 45 IPR 617 at 619 ([6]-[7]) per Emmett J, LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 46 IPR 375 at 382 ([33]) per Lindgren J, Londish & Ors v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 139-141, per Neaves, Burchett and Ryan JJ.…
Demirci v Minister for Immigration and Multicultural Affairs
[1999] FCA 1114 Para 6

…position ICI Chemicals & Polymers Ltd v Lubrizol Corp Inc (1999) 45 IPR 617 at 619 ([6]-[7]) per Emmett J, LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 46 IPR 375 at 382 ([33]) per Lindgren J, Londish & Ors v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 139-141, per Neaves, Burchett and Ryan JJ.…
ICI Chemicals & Polymers Pty Ltd v Lubrizol Corp Inc
[1999] FCA 662 Para 6

…The respondent cited as authority for this proposition ICI Chemicals & Polymers Ltd v Lubrizol Corp Inc (1999) 45 IPR 617 at 619 ([6]-[7]) per Emmett J, LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 46 IPR 375 at 382 ([33]) per Lindgren J, Londish & Ors v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 139-141, per Ne…
ICI Chemicals & Polymers Ltd v Lubrizol Corp Inc
[1999] FCA 345 Para 6

…The respondent cited as authority for this proposition ICI Chemicals & Polymers Ltd v Lubrizol Corp Inc (1999) 45 IPR 617 at 619 ([6]-[7]) per Emmett J, LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 46 IPR 375 at 382 ([33]) per Lindgren J, Londish & Ors v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 139-141, per Neaves, Burchett and Ryan JJ.…
Johnstone, Raymond Marshall v Guss, Joseph
[1998] FCA 1658 Para 8

…Mr Condon also relied on Raymond Marshall Johnstone v Joseph Guss [1998] FCA 1658 per Kenny J as authority for the proposition that where a costs certificate is amenable to review, it is not the case that a judgment based on that costs certificate loses its effect as a final judgment (see (ii) at page 12 of 19). S…
Re Scerri
[1998] FCA 403 Para 7

…1). Of course, a failure to attach a copy of the judgment on which the notice is based is a fundamental defect which cannot be cured. (See Re Scerri (1998) 82 FCR 146, per Beaumont J.)…
Smith v New South Wales Bar Association
[1992] HCA 36 Para 7

…tice. The applicant relied on Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Smith v The New South Wales Bar Association (1992) 176 CLR 256.…
Emerson v Wreckair Pty Ltd
[1992] FCA 16 Para 7

…tcy notice and whether it is permissible for a Court to go behind the judgment which is the basis for the notice: Emerson & Anor v Wreckair Pty Ltd (1991) 33 FCR 581 at 588, per Morling, Neaves and Spender JJ, Booth v Heller Equipment Finance Ltd [2000] FCA 423 at [3], per Lindgren J.…
Olivieri v Stafford
[1990] HCATrans 68 Para 25

…the amount in fact due. By reason of the judgment itself, the amount of the judgment is due.” (See also the majority in Olivieri v Stafford & Ors (1989) 91 ALR 91, per Beaumont and Gummow JJ.)…
Urban Transport Authority of New South Wales v Nweiser
4 QBD 217 Para 7

…of bankruptcy and the applicant complying with the bankruptcy notice. The applicant relied on Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471, Smith v The New South Wales Bar Association (1992) 176 CLR 256.…

Legislation cited in this decision · 3

Legal Profession Act 1987 (NSW)
208J, 208K, 208KA, 208KC, 208KE, 208KF,... 11 mentions (from Para 2)
Bankruptcy Act 1966 (Cth)
40, 41G 3 mentions (from Para 2)
Bankruptcy Regulations 1996 (Cth)
4.02 3 mentions (from Para 6)