FEDERAL COURT OF AUSTRALIA
Boensch v Pascoe (No 3) [2017] FCA 215
Appeal from: Application for an extension of time to appeal: Franz Boensch as trustee of the Boensch Trust v Scott Darren Pascoe [2015] NSWSC 1882 File number: NSD 1448 of 2016 Judge: GLEESON J Date of judgment: 9 March 2017 Catchwords: PRACTICE AND PROCEDURE – application to vary or set aside order – application refused Legislation: Federal Court Rules 2011 Cases cited: Autodesk Inc v Dyson (No 2) [1993] HCA 6; (1993) 176 CLR 300
Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41; (2007) 239 ALR 724
Date of hearing: 6 March 2017 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: Mr CJ Bevan Solicitor for the Applicant: Madison Marcus Law Firm Counsel for the Respondent: Mr MF Newton Solicitor for the Respondent: Gilchrist Connell ORDERS
NSD 1448 of 2016 BETWEEN: FRANK BOENSCH AS TRUSTEE OF THE BOENSCH TRUST
Applicant
AND: SCOTT DARREN PASCOE
Respondent
JUDGE:
GLEESON J
DATE OF ORDER:
9 MARCH 2017
THE COURT ORDERS THAT:
1.The interlocutory application filed 2 March 2017 be dismissed.
2.The applicant file and serve a notice of appeal in accordance with order 1 made on 27 February 2017 by 16 March 2017.
3.Order 6 made on 27 February 2017 be varied by deleting “within 21 days” and inserting “by 30 March 2017”.
4.The respondent file and serve any notice of contention by 6 April 2017 or 21 days after the applicant gives security in accordance with order 5 made on 27 February 2017 and order 6 made on 27 February 2017 as varied by order 3 above, whichever is the later.
5.Costs of the interlocutory application be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GLEESON J:
On 27 February 2017, I delivered judgment on Mr Boensch’s application for an extension of time to appeal: Boensch v Pascoe (No 2) [2017] FCA 146. Relevantly, I ordered that:
1.[Mr Boensch] 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 [“notice of appeal”], 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.
By orders 6, 7 and 8, I made orders for the provision by Mr Boensch of security for the costs of the appeal.
Mr Boensch now applies pursuant to rr 39.04 and 39.05 of the Federal Court Rules 2011 for orders including an order that orders 1, 2, 6, 7 and 8 made on 27 February 2017 and paragraph 31 of the reasons for…
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- AGLC
- Boensch v Pascoe (No 3) [2017] FCA 215
- Case
- [2017] FCA 215
- Decision Date
CaseChat Overview and Summary
The court examined the grounds for the extension of time to appeal, finding that they lacked utility as they did not add anything to the grounds already considered when the extension was initially granted. The court held that the arguments presented in grounds 8, 9, 11, 13, 18, and 19 were effectively subsumed within the scope of ground 10, for which an extension of time to appeal had already been granted. Consequently, the application did not meet the threshold for setting aside or varying the previous orders. The court noted that it would ordinarily approach such applications with caution, considering the necessity and utility of the requested relief.
Ultimately, the court dismissed the application, finding it to be without merit. The court varied one of the orders to provide a short extension of time for compliance, but otherwise declined to set aside or vary the previous orders. The court also made specific orders regarding the timelines for filing notices of appeal and contention, and reserved costs pending the outcome of the appeal. This decision underscores the court’s reluctance to entertain applications to set aside or vary orders unless there are compelling reasons to do so.
Orders
Orders of the court
1. The interlocutory application filed 2 March 2017 be dismissed.
2. The applicant file and serve a notice of appeal in accordance with order 1 made on 27 February 2017 by 16 March 2017.
3. Order 6 made on 27 February 2017 be varied by deleting “within 21 days” and inserting “by 30 March 2017”.
4. The respondent file and serve any notice of contention by 6 April 2017 or 21 days after the applicant gives security in accordance with order 5 made on 27 February 2017 and order 6 made on 27 February 2017 as varied by order 3 above, whichever is the later.
5. Costs of the interlocutory application be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
On an application to vary or set aside a judgment, the court will ordinarily consider whether the application is one which it should entertain, reflecting the necessary caution with which the court will consider such an approach: Venus at [8].Consideration In this case, it is unnecessary to consider whether there was the misapprehension of fact identified by Mr Bevan because the application lacks utility. It lacks utility because grounds 8, 9, 11, 13, 18 and 19 do not add anything to the grounds in respect of which an extension of time was granted on 27 February 2017.Grounds 8, 9 and 11 These grounds are as follows:8.The primary judge erred by finding that the respondent’s asserted claim to have a “legal interest” in the property, as a trustee in bankruptcy, in schedule 1 to his Caveat, should be construed as an estate or interest which vested in the respondent pursuant to s 58(1)(a) of the Bankruptcy Act when he became the appellant’s trustee in bankruptcy, because the phrase “legal estate pursuant to the Bankruptcy Act 1966” is a phrase apt to describe an interest, as a matter of law, pursuant to statute and, accordingly, it should not be read as expressing an intention to confine the claim to only a legal interest in the property as opposed to an equitable interest in the property.9.The primary judge erred by finding that the expression “legal interest pursuant to the Bankruptcy Act 1966” was apt to describe an equitable interest in the property or, alternatively, that its use was a mere technical deficiency in the drafting of the Caveat.11.The primary judge erred by failing to conclude that his findings about the standard form of words used by the respondent in formulating his Caveat supported the appellant’s construction of schedule 1 of the Caveat, namely, that the Caveat claimed the standard case of a legal and beneficial estate in fee simple, rather than supporting the respondent’s construction, which could only ever apply to the unusual or rare case of a registered proprietor who is the bankrupt trustee of a trust over the subject land. Mr Newton submitted that these grounds do no more than identify arguments in support of ground 10, in respect of which an extension of time to appeal was granted. Ground 10 states relevantly:The primary judge erred when he found that the respondent had a caveatable interest by virtue of s 58(1)(a) of the Bankruptcy Act, that he had claimed such an interest for the purposes of s 74F(1)(a) of the Real Property Act … I agree with Mr Newton. Mr Boensch does not need an extension of time to appeal in respect of grounds 8, 9 and 11 because he can argue the matters raised in those grounds in support of ground 10.Ground 13 Ground 13 states:The primary judge erred by failing to conclude that the findings of those federal courts necessarily informed the reasonableness of the respondent’s belief in the existence of a caveatable interest which treated the appellant as owner of an estate in fee simple.