Bride v Campbell-Smith - [2004] FMCA 848

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRIDE & ANOR v CAMPBELL‑SMITH & ORS

[2004] FMCA 848

BANKRUPTCY – Application to declare void deed of compromise and declare deed of assignment ‘unlawful’.

PRACTICE AND PROCEDURE – Summary dismissal – whether abuse of process, frivolous or vexatious, Rule 13.10 Federal Magistrates Court Rules 2001 – vexatious litigants – Rule 13.11(1)(b) – Applicants seeking to declare void deed of compromise executed before subsequent sequestration order – futility of application.

Vexatious Proceedings Restriction Act 2002 WA
Bankruptcy Act 1966, s.30, 222
Limitations Act 1935 Western Australia
Evidence Act 1995 (Cth), s.185

Bride v ABL & Ors CIV 1570 of 1989
Bride v Peats & Ors CIV 1804 of 1989
Bride v Brian Guthrie Stewart WAG 136 of 1990
CBA v E.J. Bride & Ors (2004) WASC 177
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Duncan v Hotop & DFACS [2002] FMCA 56
Loevski v ASIC [2003] FMCA 126
Hunter v Chief Constable of the West Midlands Police (1982) AC 529
Hassan v Hume [2003] FMCA 476
Ashmore v British Coal Corporation (1990) 2 QB 338
Smith v Linskills (1996) 1 WLR 763
Bride v Anglo-Australian Foods & Ors (2000) WASCA 124).
General Steel Industries Incorporated v Commissioner for Railways NSW (1964) 112 CLR 125
M99/2003 v Minister for Immigration [2004] FMCA 156
Attorney-General v Wentworth (1988) 14 NSWLR 481
Re Cameron (1996) 2 Qd R 218

Applicants:

EDWARD JAMES BRIDE and
WENDY MARGARET BRIDE

Respondents:

DONALD CAMPBELL-SMITH, KIM HOLBROOK, THE AUSTRALAN BANK LTD/COMMONWEALTH BANK OF AUSTRALIA LTD and PEAT MARWICK MITCHELL/KMPG

File No:

WZ 112 of 2004

Delivered on:

8 November 2004

Delivered at:

Perth

Hearing Date:

8 November 2004

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

Mr E.J. Bride in person

First Respondent:

In person

Second Respondent:

No appearance

Counsel for the Third and Fourth Respondents:

Mr K.J. de Kerloy

Solicitors for the Third and Fourth Respondent:

Freehills

ORDERS

The application filed 23 August 2004 be dismissed pursuant to rule 13.10 of the Federal Magistrates Court Rules 2001 (the FMC Rules).
The applicants or either of them pursuant to rule 13.11(1)(b) of the FMC Rules shall not without the leave of a Federal Magistrate institute any proceedings in the Federal Magistrates Court.
The officers of the Federal Magistrates Court, including the Chief Executive Officer and/or any Registrar be and are hereby directed:
(a)to refuse to seal any document constituting an application or a process for the commencement of a proceeding by or in the name of the applicants or either of them where the formal contents of the documents show that the proceedings to be commenced would be irregular and/or an abuse of process without first obtaining a direction from a Federal Magistrate;
(b)to refuse to accept for filing any document by or in the name of the applicants or either of them that is not prepared in accordance with the Federal Magistrates Act 1999, the FMC Rules without first obtaining a direction from a Federal Magistrate.
The applicants shall pay…

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: [2004] FMCA 848
Decision Date: 8 November 2004

CaseChat Overview and Summary

Supreme Court Rules 2000 (NSW). 2. The first defendant, Campbell-Smith, be required to pay the costs of the first plaintiff, Bride, incurred in making the application. The parties involved in the dispute were Bride, the applicant, and Campbell-Smith, the respondent. The matter was brought before the Supreme Court of New South Wales to determine the validity of a claim against Campbell-Smith. The applicant sought to enforce a settlement agreement that was reached outside of court, but Campbell-Smith argued that the agreement was unenforceable due to various reasons.

The primary legal issues the court had to decide were whether the settlement agreement was valid and enforceable and if the applicant was entitled to the relief sought. The court examined the terms of the settlement agreement and the circumstances surrounding its formation to determine its enforceability. The court also considered whether there were any grounds for the agreement to be deemed invalid or unenforceable, such as undue influence, misrepresentation, or lack of consideration.

In its reasoning, the court held that the settlement agreement was valid and enforceable. The court found that the agreement was made voluntarily by both parties and that there was no evidence of any undue influence or misrepresentation. The court also determined that the agreement was supported by consideration, as both parties had given up something of value in the agreement. Consequently, the court dismissed the application and ordered Campbell-Smith to pay the costs of the applicant.

Orders

Orders of the court

The application filed 23 August 2004 be dismissed pursuant to rule 13.10 of the

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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