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
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:
The appeal be dismissed.
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…
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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Cheesman v Waters [1997] FCA 752
Case
[1997] FCA 752
Decision Date
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.