Cheesman v Waters

Case [1997] FCA 752


FEDERAL COURT OF AUSTRALIA

CONSTITUTIONAL LAW -whether making of sequestration order exercise of judicial power such that to confer the power upon a Registrar of the Court would infringe Ch III of the Constitution -

BANKRUPTCY - application for declaration that sequestration order invalid - question whether appropriate for declaration to be made but not to proceed to annul bankruptcy considered -

BANKRUPTCY - trustee - failure of trustee to prosecute claim for alleged breach of mortgagee’s fiduciary duty - whether breach of duty established - whether failure to make available transcript of public examination breach of trustee’s duties - no obligation on trustee to make transcript available even if, as denied, copy in possession of trustee.

Bankruptcy Act 1966 (Cth), ss 31A(1)(n), 31A(8), 69(20), 154(1)(a)
Constitution, Ch III
Judiciary Act 1903 (Cth), s 78A

Harris v Caladine (1991) 172 CLR 84, considered and applied
Adsett v Berlouis (1992) 37 FCR 201, applied
Grollo v Palmer (1995) 184 CLR 348, considered and distinguished
Wilson v Minister for Aboriginal and Torres Strait Islanders (1996) 138 ALR 220, distinguished
Kable v Director of Public Prosecutions (1996) 138 ALR 557, distinguished
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, applied
Attorney-General (Cth) v The Queen (1957) 95 CLR 529, applied
Cameron v Cole (1943-4) 68 CLR 571, distinguished
Re Deriu (1970) 16 FLR 420, distinguished

BARRY JOHN CHEESMAN, ALICE MAY CHEESMAN, ROSS CHEESMAN, BRONWYN JOY CHEESMAN, GRAEME WALTER CHEESMAN, JEANETTE LOIS CHEESMAN v ROBERT ARTHUR WATERS and THE ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

VG 105 of 1997

HILL, HEEREY & SUNDBERG JJ
MELBOURNE
8 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY )  VG 105 of 1997
)
GENERAL DIVISION )

ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:             

BARRY JOHN CHEESMAN
ALICE MAY CHEESMAN
ROSS CHEESMAN
BRONWYN JOY CHEESMAN
GRAEME WALTER CHEESMAN
JEANETTE LOIS CHEESMAN
Bankrupts

BARRY JOHN CHEESMAN
ALICE MAY CHEESMAN
GRAEME WALTER CHEESMAN
JEANETTE LOIS CHEESMAN
Appellants

  AND:   ROBERT ARTHUR WATERS
First Respondent

THE ATTORNEY-GENERAL OF THE
COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGES: HILL, HEEREY & SUNDBERG JJ
PLACE: MELBOURNE
DATED: 8 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

  1. The appeal be dismissed.

  1. The appellants pay the respondents’ costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY )   VG 105 of 1997
)
GENERAL DIVISION )

ON APPEAL FROM A SINGLE JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:             

BARRY JOHN CHEESMAN
ALICE MAY CHEESMAN
ROSS CHEESMAN
BRONWYN JOY CHEESMAN
GRAEME WALTER CHEESMAN
JEANETTE LOIS CHEESMAN
Bankrupts

BARRY JOHN CHEESMAN
ALICE MAY CHEESMAN
GRAEME WALTER CHEESMAN
JEANETTE LOIS CHEESMAN
Appellants

  AND:   ROBERT ARTHUR WATERS
First Respondent

THE ATTORNEY-GENERAL OF THE
COMMONWEALTH OF AUSTRALIA
Second Respondent

JUDGES: HILL, HEEREY & SUNDBERG JJ
PLACE: MELBOURNE
DATED: 8 AUGUST 1997

REASONS FOR JUDGMENT

THE…

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Cheesman v Waters [1997] FCA 752
Case
[1997] FCA 752
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CaseChat Overview and Summary

The appeal was brought by the Cheesmans against Mr Waters, the trustee of their bankrupt estates, and the Attorney-General of the Commonwealth. The Cheesmans sought declarations that Mr Waters was in breach of his duties as trustee and damages in consequence. They also sought a declaration that the sequestration order was null, void, and of no effect due to the alleged unconstitutionality of the power conferred on a Registrar of the Federal Court to make a sequestration order. The primary judge dismissed the Cheesmans' application, finding the provisions of s 31A(1)(n) of the Bankruptcy Act 1966 (Cth) valid and that the Cheesmans had not established that Mr Waters acted in breach of his duties as trustee. The Cheesmans appealed the decision, arguing that the constitutional validity of the Registrar's power to make a sequestration order and the trustee's breach of duty were incorrect. The Full Court found that the learned primary judge was correct in holding that the present case was indistinguishable from Harris v Caladine and that the constitutional challenge to the power of the Registrar to make the sequestration order was without merit. The Full Court also found that the Cheesmans had not established that Mr Waters acted in breach of his duties as trustee. The appeal was dismissed with costs.

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