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Boensch v Pascoe

Boensch v Pascoe

Case [2016] NSWCA 191 4 August 2016

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New South Wales

Amendment notes

Medium Neutral Citation: Boensch v Pascoe [2016] NSWCA 191
Hearing dates: 01 August 2016
Decision date: 04 August 2016
Before: Leeming JA
Decision:
Appeal be dismissed, with Mr Boensch to pay the costs of the question of jurisdiction.

Catchwords: COURTS – jurisdiction – trustee in bankruptcy lodged caveat based on interest arising under Bankruptcy Act 1966 (Cth) s 58 – proceedings against trustee in bankruptcy claiming caveat lodged and maintained without reasonable cause dismissed – whether appeal lay to Court of Appeal – whether prohibition on instituting and determining appeal other than in a federal court in s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) applied – whether appeal involved a matter for determination arising under the Bankruptcy Act – appeal dismissed
Legislation Cited: Bankruptcy Act 1966 (Cth), ss 58, 121
Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7
Real Property Act 1900 (NSW), s 74P
Supreme Court Act 1970 (NSW), s 46
Uniform Civil Procedure Rules 2005 (NSW), r 51.41
Cases Cited: Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392; 86 NSWLR 392
Commonwealth of Australia v Gretton [2008] NSWCA 117
Eberstaller v Poulos [2014] NSWCA 211; 87 NSWLR 394
Felton v Mulligan (1971) 124 CLR 367
Franz Boensch as trustee of the Boensch Trust v Scott Darren Pascoe [2015] NSWSC 1882
Grace v Grace [2014] NSWCA 86; 85 NSWLR 688
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
Macteldir Pty Limited v Dimovski [2005] FCA 1528; 226 ALR 773
Obeid v R [2015] NSWCCA 309
Pascoe v Boensch [2008] FCAFC 147
Pascoe v Boensch [2009] HCASL 61
Zeiher v Holder [2014] NSWCA 334; 289 FLR 314
Texts Cited: Royal Commission on the Constitution of the Commonwealth, Minutes of Evidence, 13 December 1927
Category: Principal judgment
Parties: Franz Boensch as trustee of the Boensch Trust (Appellant)
Scott Darren Pascoe (Respondent)
Representation:
Counsel:
CJ Bevan (Appellant)
MF Newton (Respondent)
Solicitors:
Madison Marcus Law Firm (Appellant)
Gilchrist Connell (Respondent)

File Number(s): 2016/3644
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2015] NSWSC 1882

Date of Decision:

10 December 2015

Before:

Darke J

File Number(s):

2012/165657

Judgment

LEEMING JA: The parties to this appeal are Mr Franz Boensch and his former trustee in bankruptcy, Mr Scott Darren Pascoe. Mr Boensch has purported to appeal to this Court from the decision of the primary judge given on 10 December 2015 following a three day hearing dismissing Mr Boensch’s claim under s 74P of the Real Property Act 1900 (NSW): Franz Boensch as trustee of the Boensch Trust v Scott Darren Pascoe [2015] NSWSC 1882. Mr Boensch has filed an application for a stay, while Mr Pascoe has sought security for costs. There were at one stage (it is not clear whether there continue to be) disputes about amending…

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 Boensch v Pascoe

Details

AGLC: Boensch v Pascoe [2016] NSWCA 191
Case: [2016] NSWCA 191
Decision Date: 04 August 2016

CaseChat Overview and Summary

The appeal concerned a dispute between Mr Boensch and Mr Pascoe, who was the trustee in bankruptcy of Mr Boensch. Mr Pascoe had lodged a caveat on certain land based on an interest arising under section 58 of the *Bankruptcy Act 1966* (Cth). Mr Boensch subsequently initiated proceedings against Mr Pascoe, alleging the caveat had been lodged and maintained without reasonable cause. These proceedings were dismissed, leading to the present appeal to the Court of Appeal.

The central legal issue before the Court of Appeal was whether an appeal lay to it from the primary judge's decision. This question turned on the interpretation and application of section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth), which prohibits the institution or determination of an appeal other than in a federal court in certain circumstances. Specifically, the Court had to determine if the appeal involved a "matter for determination arising under the *Bankruptcy Act*".

The Court reasoned that section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth) operated to prevent the appeal from being heard in the Court of Appeal. The Court found that the proceedings, which concerned the lodging and maintenance of a caveat based on a trustee's interest under the *Bankruptcy Act 1966* (Cth), constituted a "matter for determination arising under the *Bankruptcy Act*". Therefore, the prohibition in section 7(5) applied, meaning the appeal could only be instituted and determined in a federal court.

The appeal was dismissed, and Mr Boensch was ordered to pay the costs of the question of jurisdiction.

Orders

Orders of the court

Appeal be dismissed, with Mr Boensch to pay the costs of the question of jurisdiction.

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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Citations

Boensch v Pascoe [2016] NSWCA 191

Most Recent Citation

Boensch v Pascoe [2016] FCA 1104

Cases Citing This Decision

Dunne (a pseudonym) v Lloyd (a pseudonym) [2025] WASCA 119
Citation 1 (Para 8)

…on of its jurisdiction, and satisfy itself that it exists. See I v Y ;[2] Boensch v Pascoe .[3] [2] I v Y [2017] WASCA 75 [8]. [3] Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 [10].…
Cull v Singh [2024] FCA 258
Citation 2 (Para 6)

…f the Supreme Court of New South Wales in Singh v Khan [2021] NSWSC 1093. Mr Singh asserted that an appeal lay “in accordance with Boensch v Pascoe [2016] NSWCA 191 under Jurisdiction of Courts (Cross‑vesting) Act 1987 (Cth) section 7(5)”, and sought various orders, naming Dr Khan, Mrs Khan, Fobupu Pty Ltd, the Sec…
HBSY Pty Ltd v Lewis [2023] FCAFC 109
Citation 3 (Para 1)

…Boensch v Pascoe [2016] NSWCA 191; 311 FLR 101 ( Boensch ) appears not to have been a case requiring leave to appeal. However, a threshold issue as to the competency of the appeal was determined by Leeming JA sitting alone. In view of the dispositive reasoning of the primary judge in that case, his Honour regarded…
Bolinger v Bell (No 2) [2022] NSWSC 1495
Citation 4

…3) 279 FLR 1; [2013] FamCAFC 116 Bing & Bing (2007) FLC 93-318; [2007] FamCA 418 Boensch v Pascoe (2016) 349 ALR 193; [2016] NSWCA 191 Bollinger v Bell; The Estate of the Late Colin Bell [2022] NSWSC 486 Cao & Trong (No. 2) [2019] FamCA 941 Commissioner of Stamp Duties v Livingston (1964) 112 CLR 12 Dickons & Dicko…
Guan v Li [2022] NSWCA 173
Citation 5 (Para 41)

…is a matter arising under a specified federal enactment, the section applies: Boensch (as trustee of the Boensch Trust) v Pascoe (2016) 349 ALR 193; [2016] NSWCA 191 at [18] per Leeming JA ( Boensch ). The analysis necessarily turns upon the nature of the appellant’s claims in the appeal: Boensch at [20].…
Aviani v Loh (No 2) [2022] NSWSC 1148
Citation 6 (Para 6)

…ommonwealth (1924) 34 CLR 442 at 446; [1924] HCA 36 (Isaacs ACJ); Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 at [1]; Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 at [10].…
Citta Hobart Pty Ltd & Anor v Cawthorn [2022] HCATrans 1
Citation 7

…In short, your Honours, as his Honour Justice Leeming said in Boensch v Pascoe (2016) 311 FLR 101 at paragraph 20, to be found at tab 94 of the book of authorities:…
Mohareb v State of New South Wales [2021] NSWCA 278
Citation 8 (Para 20)

…risdiction of Courts (Cross-vesting) Act 1987 (Cth) concerning appeals in matters arising under, inter alia, the Bankruptcy Act: see Boensch v Pascoe [2016] NSWCA 191; 311 FLR 101 and Morris Finance Ltd v Brown (2016) 93 NSWLR 551; [2016] NSWCA 343. However, that prohibition does not extend to appeals from the Dist…
Karlsson v Griffith University [2020] NSWCA 176
Citation 9 (Para 8)

…ourt of Australia: Eberstaller v Poulos , at [25]; Morris Finance Ltd v Brown (2016) 93 NSWLR 551; [2016] NSWCA 343, at [21]-[23]; Boensch v Pascoe ; [2016] NSWCA 191; (2016) 311 FLR 101, at [10]. [2] 2. Subject to the satisfaction of the matters referred to in s 7(7) of the Cross-vesting Act after the Court has co…
Gao v Perry [2020] NSWCA 15
Citation 10 (Para 27)

…prohibitions: a prohibition on instituting, and a prohibition on determining, certain classes of appeals. The same point was made in Boensch v Pascoe [2016] NSWCA 191; 349 ALR 193 at [11] by reference to the “dual prohibitions” in s 7(5):…
Charan v Commonwealth Bank of Australia [2020] NSWCA 13
Citation 11 (Para 22)

…Thus, for example, in Boensch v Pascoe [2016] NSWCA 191; 349 ALR 193 (which coincidentally involved one of the third respondents to the present proceeding), an appeal against a trustee in bankruptcy was dismissed for want of jurisdiction in accordance with s 7(5).…
Boensch as trustee of the Boensch Trust v Pascoe [2018] FCAFC 234
Citation 12 (Para 1)

…he primary judge to the New South Wales Court of Appeal. On 4 August 2016, Leeming JA dismissed the appeal for lack of jurisdiction: Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101. His Honour decided that the appeal from the primary judge’s decision lay to the Full Court of this Court. The appellant needed a…
Fokas v Mansfield (No 2) [2017] NSWCA 261
Citation 13 (Para 17)

…In any event, there is authority by which I am bound that the relevant power arises under s 46(2)(b) ( Macatangay (No 2) at [15]; Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 at [23]; and McGinn v Cranbrook School [2016] NSWCA 226 at [3]).…
Majak v Rose (No 4) [2017] NSWCA 170
Citation 14 (Para 19)

…ng under s 46(2)(b) may dismiss an appeal as incompetent ( Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [15] and Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 at [23]). It may be noted that in McGinn v Cranbrook School [2015] NSWCA 378, Leeming JA relied on s 46(1)(b) as the relevant sou…
I v Y [2017] WASCA 75
Citation 15 (Para 1)

…appeal. It is vital to determine at the outset whether a court whose jurisdiction is sought to be invoked in fact has jurisdiction: Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 [10] and cases there cited.…
Boensch v Pascoe (No 2) [2017] FCA 146
Citation 16 (Para 22)

…in accordance with the applicable time limits. However, on 4 August 2016, Leeming JA dismissed the appeal for lack of jurisdiction: Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101, concluding that the appeal from the primary judge’s decision lay to a Full Court of this Court. The question of the court’s lack…
Morris Finance Ltd v Brown [2016] NSWCA 343
Citation 17 (Para 22)

…In a case materially indistinguishable from the present, Boensch v Pascoe [2016] NSWCA 191, Leeming JA determined that this Court did not have jurisdiction in a matter arising under the Bankruptcy Act by reason of s 7(5) of the Jurisdiction of Courts (Cross-vesting) Act. I agree with his Honour’s reasons for so con…
Boensch v Pascoe [2016] FCA 1104
Citation 18 (Para 2)

…An appeal was lodged in the Court of Appeal of New South Wales: see Boensch v Pascoe [2016] NSWCA 191. It came before Justice Leeming, who noted that the Court of Appeal did not have jurisdiction to hear the appeal because of the operation of ss 7(5) and 7 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth…

See all citing cases →

Cases Cited

Franz Boensch as trustee of the Boensch Trust v Scott Darren Pascoe [2015] NSWSC 1882
Citation 1 (Para 1)

…dismissing Mr Boensch’s claim under s 74P of the Real Property Act 1900 (NSW): Franz Boensch as trustee of the Boensch Trust v Scott Darren Pascoe [2015] NSWSC 1882. Mr Boensch has filed an application for a stay, while Mr Pascoe has sought security for costs. There were at one stage (it is not clear whether there…
Obeid v R [2015] NSWCCA 309
Citation 2 (Para 10)

…to determine at the outset whether a court whose jurisdiction is sought to be invoked in fact has jurisdiction. The same point was made in Obeid v R [2015] NSWCCA 309 at [9]. Where a party seeks to bring an appeal from a decision of a single judge of the Supreme Court of a State or Territory, and especially where t…
Zeiher v Holder [2014] NSWCA 334
Citation 3 (Para 23)

…(NSW), something which accords with what was determined in Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [15]. In Zeiher v Holder [2014] NSWCA 334; 289 FLR 314, the President made such an order in comparable circumstances.…
Eberstaller v Poulos [2014] NSWCA 211
Citation 4 (Para 10)

…As this Court reiterated in Eberstaller v Poulos [2014] NSWCA 211; 87 NSWLR 394 at [20], it is vital to determine at the outset whether a court whose jurisdiction is sought to be invoked in fact has jurisdiction. The same point was made in Obeid v R [2015] NSWCCA 309 at [9]. Where a party seeks to bring an appeal f…
Grace v Grace [2014] NSWCA 86
Citation 5 (Para 24)

…ought an order that the appeal be dismissed with costs, and pointed to the comparable orders that were made in Eberstaller v Poulos and Grace v Grace [2014] NSWCA 86; 85 NSWLR 688. He submitted that r 51.41(2) of the UCPR did not apply, either directly or by analogy. That rule provides that where an appeal is dism…
Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392
Citation 6 (Para 22)

…ys in which an appeal may involve a matter arising under a federal statute: see for example Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392; 86 NSWLR 392. However, I regard the present proceeding to be a clear case, in light of the directness of the challenge to the reasoning based on s 5…
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
Citation 7 (Para 23)

…t to s 46(2)(b) of the Supreme Court Act 1970 (NSW), something which accords with what was determined in Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [15]. In Zeiher v Holder [2014] NSWCA 334; 289 FLR 314, the President made such an order in comparable circumstances.…
Pascoe v Boensch [2008] FCAFC 147
Citation 8 (Para 3)

…e dismissed by the Federal Magistrates Court of Australia, from which the Full Court of the Federal Court dismissed an appeal: Pascoe v Boensch [2008] FCAFC 147. An application for special leave was dismissed 12 March 2009: Pascoe v Boensch [2009] HCASL 61.…
Commonwealth of Australia v Gretton [2008] NSWCA 117
Citation 9 (Para 25)

…ourt. The ultimate question is what is fair, having regard to the parties’ responsibility in incurring costs: Commonwealth of Australia v Gretton [2008] NSWCA 117 at [85] and [121]. I do not consider that it would be fair for Mr Boensch to bear not only his own costs, but also those incurred by Mr Pascoe, in relati…
Macteldir Pty Ltd v Dimovski [2005] FCA 1528
Citation 10 (Para 20)

…7, p 788. This has, so far as I am aware, never been doubted. As Allsop J (as his Honour then was) said in Macteldir Pty Limited v Dimovski [2005] FCA 1528; 226 ALR 773 at [36], with reference to authority,…
Felton v Mulligan [1971] HCA 39
Citation 11 (Para 14)

…Contrary to Mr Boensch’s submissions, this was not a case where the Bankruptcy Act was merely “lurking in the background”; cf Felton v Mulligan (1971) 124 CLR 367 at 388.…
Pascoe v Boensch [2009] HCASL 61
Citation 12 (Para 3)

…al Court dismissed an appeal: Pascoe v Boensch [2008] FCAFC 147. An application for special leave was dismissed 12 March 2009: Pascoe v Boensch [2009] HCASL 61.…

Legislation Cited

Bankruptcy Act 1966 (Cth) 121, 58
3 mentions (from Para 2)
Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS) 7
2 mentions (from Para 1)
Real Property Act 1900 (NSW) 74P
2 mentions (from Para 1)
Supreme Court Act 1970 (NSW) 46
2 mentions (from Para 23)
Family Law Act 1975 (Cth)
1 mention (from Para 10)
Uniform Civil Procedure Rules 2005 (NSW) 51.41
1 mention

Medium Neutral Citation:	Boensch v Pascoe [2016] NSWCA 191
Hearing dates:	01 August 2016
Decision date:	04 August 2016
Before:	Leeming JA
Decision:	Appeal be dismissed, with Mr Boensch to pay the costs of the question of jurisdiction.
Catchwords:	COURTS – jurisdiction – trustee in bankruptcy lodged caveat based on interest arising under Bankruptcy Act 1966 (Cth) s 58 – proceedings against trustee in bankruptcy claiming caveat lodged and maintained without reasonable cause dismissed – whether appeal lay to Court of Appeal – whether prohibition on instituting and determining appeal other than in a federal court in s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) applied – whether appeal involved a matter for determination arising under the Bankruptcy Act – appeal dismissed
Legislation Cited:	Bankruptcy Act 1966 (Cth), ss 58, 121 Family Law Act 1975 (Cth) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7 Real Property Act 1900 (NSW), s 74P Supreme Court Act 1970 (NSW), s 46 Uniform Civil Procedure Rules 2005 (NSW), r 51.41
Cases Cited:	Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd [2013] NSWCA 392; 86 NSWLR 392 Commonwealth of Australia v Gretton [2008] NSWCA 117 Eberstaller v Poulos [2014] NSWCA 211; 87 NSWLR 394 Felton v Mulligan (1971) 124 CLR 367 Franz Boensch as trustee of the Boensch Trust v Scott Darren Pascoe [2015] NSWSC 1882 Grace v Grace [2014] NSWCA 86; 85 NSWLR 688 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Macteldir Pty Limited v Dimovski [2005] FCA 1528; 226 ALR 773 Obeid v R [2015] NSWCCA 309 Pascoe v Boensch [2008] FCAFC 147 Pascoe v Boensch [2009] HCASL 61 Zeiher v Holder [2014] NSWCA 334; 289 FLR 314
Texts Cited:	Royal Commission on the Constitution of the Commonwealth, Minutes of Evidence, 13 December 1927
Category:	Principal judgment
Parties:	Franz Boensch as trustee of the Boensch Trust (Appellant) Scott Darren Pascoe (Respondent)
Representation:	Counsel: CJ Bevan (Appellant) MF Newton (Respondent) Solicitors: Madison Marcus Law Firm (Appellant) Gilchrist Connell (Respondent)
File Number(s):	2016/3644
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2015] NSWSC 1882 Date of Decision: 10 December 2015 Before: Darke J File Number(s): 2012/165657