Charter Finance Pty Ltd v Finn

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHARTER FINANCE PTY LTD v FINN [2012] FMCA 681

BANKRUPTCY – Interim application filed by second mortgagee against Trustee contesting the terms of a Deed of Settlement & Release entered into to settle ligation – construction of key terms of the agreement.

BANKRUPTCY – Trustee’s obligations in respect to the acceptance and rejection of Proof of Debt – effect of Deed of Settlement & Release.

Bankruptcy Act 1966 (Cth), ss.43, 52, 82, 90, 104, 105, 120, 176
Conveyancing Act 1919 (NSW), s.66
Real Property Act 1900 (NSW), ss.57, 58
Trade Practices Act 1974 (Cth)
Barwick v Goodridge (No.2) [2011] NSWSC 1523
Adsett v Berlouis & Ors (1992) 37 FCR 201
Brady v Official Trustee in Bankruptcy (No.1) [2001] FMCA 63
Brady v Official Trustee in Bankruptcy [2002] FCA 363
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Esber v Kimberly Securities Ltd [2009] NSWSC 1422
Hunt Brothers (a firm) v Colwell (1939) CA Vol 4, 406
Jackson v Salisbury (No.3) [2000] FCA 1840
McKenzie v Rees (1941) 65 CLR 1
Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458
Re Stanton [1902] 2 IR 57
Sanwick v Wily as Trustee of the Bankrupt Estate of Peter Robert Finn & Anor [2009] NSWSC 86
Schuler A.G. v Wickman Machine Tool Sales Ltd [1974] AC 235
Scott Fell v Lloyd (1911) 13 CLR 230
Applicant: CHARTER FINANCE PTY LTD
Respondent: PETER ROBERT FINN
Applicant for Interim Orders: MANGO MEDIA PTY LTD
Respondent for Interim Orders: ANDREW HUGH JENNER WILY AS TRUSTEE FOR THE BAKRUPT ESTATE OF PETER ROBERT FINN
File Number: SYG 3906 of 2007
Judgment of: Lloyd-Jones FM
Hearing date: 11 October 2011
Date of Last Submission: 11 October 2011
Delivered at: Sydney
Delivered on: 13 August 2012

REPRESENTATION

Counsel for the Applicant for Interim Orders: Mr M. W. Young
Solicitors for the Applicant for Interim Orders: Heidtman & Co
Counsel for the Respondent for the Interim Orders: Mr Baird
Solicitors for the Respondent for the Interim Orders: Sally Nash & Co

ORDERS

  1. The interim application filed on 27 June 2011 is dismissed.

  2. The Applicant to pay the Respondent’s costs to be agreed on or, in the absence of agreement, to be assessed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 3906 of 2007

CHARTER FINANCE PTY LTD

Applicant

And

PETER ROBERT FINN

Respondent

REASONS FOR JUDGMENT

Introduction

  1. On 20 December 2007 a creditor’s petition was filed by Charter Finance Pty Ltd, applying to the Court for the making of a sequestration order under s.43 of the Bankruptcy Act 1966 (Cth) (the “Bankruptcy Act”) against the estate of Peter Robert Finn. The respondent debtor failed to comply on or before 15 November 2007 with the requirements of a bankruptcy notice issued on 17 October 2007 and served on the respondent debtor on 25 October 2007, or to satisfy the Court that he had a counter-claim, set-off or cross-demand equal to or more than the sum claimed in…

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Details
Case
[2012] FMCA 681
Decision Date

CaseChat Overview and Summary

Charter Finance Pty Ltd was the first mortgagee of property owned by Peter Robert Finn, who subsequently became bankrupt. Mango Media Pty Ltd was the second mortgagee. Mango Media commenced proceedings against Finn in the Supreme Court of New South Wales, seeking to enforce its mortgage over Finn's property. Mango Media and the Trustee of Finn's bankrupt estate entered into a Deed of Settlement and Release to settle their disputes. Mango Media sought an interim order against the Trustee, claiming that the Trustee was in breach of the Deed of Settlement and Release by rejecting a proof of debt Mango Media had lodged in Finn's bankruptcy. Mango Media claimed that it was entitled to have the Trustee acknowledge it as a creditor and pay it an amount of $164,953.88. The Trustee opposed the interim application. The Federal Magistrates Court was required to construe the Deed of Settlement and Release to determine if the Trustee had breached it by rejecting Mango Media's proof of debt. The Court considered the entire Deed of Settlement and Release and the context in which it was entered into. The Court found that Mango Media was entitled to be paid $203,500, being its principal amount due plus interest, under its mortgage at the date of Finn's bankruptcy. Mango Media received that amount from Westpac Banking Corporation, the first mortgagee, after it sold the Croydon property. Mango Media was not entitled to claim interest from the date of bankruptcy as it was unsecured. The Court found that Mango Media's proof of debt was properly rejected as there was no provable debt. The Trustee was required to administer the estate in accordance with the Bankruptcy Act and was not permitted to contract out of that obligation. The Court found that the Trustee had not breached the Deed of Settlement and Release and dismissed the interim application.

Orders

Orders of the court

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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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