FEDERAL COURT OF AUSTRALIA
Boensch v Pascoe (No 2) [2017] FCA 146
Table of Corrections 24 March 2017 In paragraph 6, the date “25 August 2009” has been replaced…
Continue reading Boensch v Pascoe (No 2)
Sign in free to access the full text
Details
- AGLC
- Boensch v Pascoe (No 2) [2017] FCA 146
- Case
- [2017] FCA 146
- Decision Date
CaseChat Overview and Summary
In the case of Boensch v Pascoe (No 2), the applicant, Mr Boensch, sought an extension of time to file a notice of appeal from the Supreme Court of New South Wales' decision, as well as a stay of the execution of the costs order and security for the costs of the appeal. The primary dispute between the parties centred on the validity of the Boensch Trust, the transfer of property, and the actions of Mr Pascoe as the trustee of Mr Boensch's bankrupt estate. The court had to determine the legal issues surrounding the extension of time for filing the notice of appeal, the stay of the execution of the costs order, and the provision of security for the costs of the appeal. The court considered the arguments of both parties and found that the applicant was granted an extension of time to file a notice of appeal in relation to specific grounds, while the application for an extension of time was refused otherwise. The court also refused the application for a stay of the execution of the costs order but granted the application for security for costs in the amount of $30,000. The appeal would be stayed until the security was provided, and if not provided, the appeal would be dismissed. The applicant was also ordered to pay the respondent's costs of and incidental to the application for security for costs.
Orders
Orders of the court
1. The applicant be granted an extension of time to file a notice of appeal including grounds 3 to 6, 10 and 14 to 17 of the notice of appeal being annexure “DWL 15” to the affidavit of David Winston Low sworn 15 August 2016, ground 17 to be amended in accordance with [90] of the reasons for judgment published today.
2. Otherwise, the application for an extension of time dated 25 August 2016 be refused.
3. The costs of the application for an extension of time dated 25 August 2016 be costs in the appeal.
4. The application for a stay of the costs order made against the applicant by the Supreme Court of New South Wales on 9 May 2016 be refused with costs.
5. Pursuant to s 56(1) of the Federal Court of Australia Act 1976 (Cth), the applicant is to give security for the payment of the respondent’s costs of the appeal, by way of a bank guarantee from an Australian trading bank in favour of the respondent for an amount of $30,000.
6. The security ordered to be given by the applicant for the respondent’s costs of the appeal be given within 21 days.
7. The appeal be stayed until security is given in accordance with orders 5 and 6 above.
8. If the security is not given in accordance with orders 5 and 6 above, the appeal be dismissed pursuant to s 56(4) of the Act.
9. The applicant pay the respondent’s costs of and incidental to the application for security for costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
In the event that an extension of time to appeal is granted:(1)Mr Boensch seeks an order staying the execution (including assessment) of the costs order pending determination of the appeal; and(2)Mr Pascoe seeks security for the costs of the appeal. BACKGROUND TO THE PROPOSED APPEAL Mr Boensch is the trustee of the Boensch Trust, established by a memorandum of trust dated 23 August 1999. The memorandum of trust provided for the Rydalmere property to be trust property. At all relevant times, Mr Boensch and his former wife were joint registered proprietors of the Rydalmere property. Mr Boensch was made bankrupt on 23 August 2005, on the application of Michael Costin. The application was based on a judgment obtained by Mr Costin in the Ryde Local Court in July 2003, following a contested hearing. Mr Pascoe was appointed as the trustee of Mr Boensch’s bankrupt estate. On 25 August 2009, Mr Pascoe lodged a caveat over Mr Boensch’s interest in the Rydalmere property. The nature of the estate or interest claimed by Mr Pascoe in the caveat was “legal interest pursuant to the Bankruptcy Act 1966”. The estate or interest was said to arise by virtue of the sequestration order made against Mr Boensch and Mr Pascoe’s appointment as trustee in bankruptcy. The caveat stated:Pursuant to sections 156A(3) and 58(1)(a) of the Bankruptcy Act 1966 property of the bankrupt vests in the Trustee. As Darke J put it in his Honour’s reasons, at [7]:The validity of the Boensch Trust became a matter of controversy between Mr Boensch and Mr Pascoe. So, too, did the question whether any transfer of property effected by the Memorandum of Trust was void against Mr Pascoe by reason of s 121 of the Bankruptcy Act 1966 (Cth). These matters were litigated in the Federal Magistrates Court and the Federal Court over a period of some years. Ultimately, Mr Boensch prevailed. The relevant decision of a Full Court of this Court, dismissing Mr Pascoe’s claims concerning the Boensch Trust is Pascoe v Boensch [2008] FCAFC 147. An application for special leave to appeal from that decision to the High Court of Australia was dismissed: Scott Darren Pascoe v Franz Boensch & Anor [2009] HCASL 61. The caveat lapsed in September 2009. In the Supreme Court proceedings, Mr Boensch claimed compensation from Mr Pascoe on the basis that, in the course of the bankruptcy, Mr Pascoe, without reasonable cause, lodged and later refused or failed to withdraw the caveat over the Rydalmere property. Primary judge’s reasons At [4] of his Honour’s reasons, the primary judge recorded an order, made by consent on 15 May 2015, for the determination of the following three separate questions:(1)Did [Mr Pascoe] lodge Caveat AB721857 over [the Rydalmere property] without reasonable cause within the meaning of section 74P(1) of the [Real Property Act]?(2)Did [Mr Pascoe], without reasonable cause within the meaning of s 74P(1) of the Act, refuse or fail to withdraw the Caveat after being requested to do so?(3)If the answer to Question (2) above is “Yes”, on what date should [Mr Pascoe] have withdrawn the Caveat?
Evidence
Evidence Before The Court
In my view, Mr Newton’s submission can only be understood as a reference to the appeal insofar as it concerns findings about Mr Pacsoe’s belief. It is not expressed as a concession of the kind suggested by Mr Bevan. Mr Newton had previously stated clearly that Mr Pascoe wished to argue that the appeal lacks merit. Accordingly, I reject the submission that the scope of Mr Pascoe’s opposition to the extension of time application was confined by the alleged “critical concession”. EVIDENCE The following affidavits were read on behalf of Mr Boensch, subject to rulings on admissibility:(1)affidavit of David Winston Low sworn 23 June 2016, and an accompanying exhibit marked “DWL1”;(2)affidavit of Mr Boensch sworn 22 July 2016;(3)affidavit of David Winston Low sworn 25 August 2016;(4)affidavit of Stephanie Boensch sworn 27 September 2016;(5)affidavit of Dominic Boensch sworn 27 September 2016; and(6)affidavit of Mr Boensch sworn 28 September 2016. Mr Pascoe’s evidence comprised:(1)affidavit of Paul Kozub sworn 30 June 2016, and an accompanying exhibit marked “PBK1”;(2)affidavit of Mr Kozub sworn 12 September 2016;(3)a volume of material exhibited to Mr Kozub at the time that he swore his 12 September 2016 affidavit; and(4)a notice to produce documents addressed to Mr Boensch and a bundle of documents produced in response to the notice to produce.MERITS OF THE APPEAL I have addressed the various grounds of appeal in the order in which they were addressed by the parties’ written submissions.Ground 20: appeal from refusal of application for leave to amend statement of claim Ground 20 is as follows:20.The Chief Judge in Equity erred by refusing the appellant’s application for leave to amend his statement of claim to plead issue estoppels and by finding, in doing so that:(a)the appellant did not need to rely upon any of those issue estoppels; and(b)it was sufficient that the appellant could rely on the tender of the judgments of the federal courts to prove that findings by those courts were made on the dates of the judgments within the meaning of s. 91 of the Evidence Act 1995. Ground 20 concerns the interlocutory judgment. It specifies three alleged appellable errors by Bergin CJ in Eq, being:(1)the refusal of Mr Boensch’s application for leave to amend his statement of claim to plead issue estoppels;(2)a finding that Mr Boensch did not need to rely upon any of the relevant issue estoppels; and(3)a finding that Mr Boensch could rely on the tender of the judgments of the federal courts to prove that findings by those courts were made on the dates of the judgments within the meaning of s. 91 of the Evidence Act1995 (Cth). Her Honour’s ex tempore judgment records, relevantly:(1)Mr Bevan wished to rely on findings in earlier judgments, which he referred to as issue estoppels, in support of Mr Boensch’s case. The findings were said to concern the credit of Mr Pascoe as well as “what the history of the matter is said to be in this proceeding compared with what it was said to be” in proceedings in this Court before Buchanan J;(2)her Honour asked Mr Bevan to identify the evidence served by Mr Pascoe in which Mr Pascoe sought to put forward matters inconsistent with the earlier judgments;(3)her Honour did not accept that the example provided by Mr Bevan was inconsistent with any previous finding. Her Honour described it as a “belief in 2005”. On this basis, her Honour stated that “[t]here has been nothing identified that would cause a need for the pleading at this stage”;(4)her Honour then criticised aspects of the proposed pleading as “exquisitely a combination of submissions and allegations that are not appropriate for a pleading”, a “very unhelpful” and “not … helpful in identifying the issues between the parties” and “fall[ing] foul of the usual requirements for pleadings to identify facts and allegations, rather than having submissions and contentions combined with alleged evidence and claimed issue estoppel all rolled up into one”; and(5)counsel for Mr Pascoe, Mr Newton, did not oppose the relevant judgments being placed before the primary judge. Her Honour recorded that Mr Newton “rightly points out that s 91 of the Evidence Act 1995 does not prevent that happening”. Her Honour also recorded:During the course of debate, I invited Mr Newton to indicate whether there was any difficulty for the relevant judgments to be placed before the trial judge. Mr Newton rightly points out that section 91 of the Evidence Act 1995 does not prevent that happening. He does not have any difficultly with that happening and so it will be that if it is thought appropriate in the plaintiff’s case that the judgments are to be relied upon as proof of the findings of the facts that occurred in those judgments then there will be no objection to the admissibility of those judgments for proof that those facts were found as at the dates of those judgments.
Decision
Reasons for decision
Taking into account the risk that an order for security for costs will stultify the appeal, I will make an order that requires security for costs in an amount of $30,000.CONCLUSION I will grant an extension of time to appeal in relation to grounds 3 to 6, 10, and 14 to 17, with ground 17 being limited so that the words “privileged communications” refer solely to the 17 March 2004 letter and the words “and that the respondent had obtained those communications improperly” be omitted. I will otherwise refuse the application for an extension of time to appeal. Costs of the application for an extension of time will be costs in the appeal. I will refuse the application for a stay of execution of the primary judge’s costs order, with costs. I will make an order for security for costs in an amount of $30,000. The appellant should pay the costs of that application.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.