Clout (Trustee) v Anscor Pty Ltd - [2001] FCA 604

FEDERAL COURT OF AUSTRALIA
Clout (Trustee) v Anscor Pty Ltd [2001] FCA 604
PRACTICE AND PROCEDURE - parties - representation for corporate respondent - leave to appear otherwise than by a solicitor - leave refused - leave for ninth respondent’s husband to appear as a “lay advocate” - leave refused.
Bankruptcy Act 1966 (Cth) ss 116 and 120
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules O 1 r 5, O 29
Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 referred to
Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 followed
Cross v National Australia Bank Ltd (Drummond J, 13 May 1993, unreported) referred to
McKenzie v McKenzie [1970] 3 All ER 1034 referred to
R v EJ Smith [1982] 2 NSWLR 608 at 613 - 614; on appeal Smith v The Queen (1985) 159 CLR 532 followed
DAVID LEWIS CLOUT (AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF GEOFFREY ROBERT DEXTER) v ANSCOR PTY LTD, MACKAY & ALLEN PTY LTD, HINATORIE PTY LTD (PROVISIONAL LIQUIDATOR APPOINTED), THE FUND ADMINISTRATORS PTY LTD, REINSAG NOMINEES PTY LTD, SPECTRUM FUND ADMINISTRATION PTY LTD, AUSTRALIAN SECURED MORTGAGES PTY LTD, PROJECT FINANCE (QLD) PTY LTD, ANNE SHIRLEY CORBETT, CROFTBY DOWNS PTY LTD, THORNVILLE PTY LTD IN ITS OWN CAPACITY AND IN ITS CAPACITY AS TRUSTEE OF THE ANSCOR EXECUTIVE INCENTIVE TRUST AND THE THORNVILLE EXECUTIVE INCENTIVE TRUST, ANSCOR INVESTMENTS PTY LTD AND PACIFIC INTERNATIONAL ASSET MANAGEMENT LIMITED
QG 7308 OF 1998
DRUMMOND J
23 MAY 2001
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QG 7308 OF 1998

BETWEEN:

DAVID LEWIS CLOUT (AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF GEOFFREY ROBERT DEXTER)
APPLICANT

AND:

ANSCOR PTY LTD
FIRST RESPONDENT

MACKAY & ALLEN PTY LTD
SECOND RESPONDENT

HINATORIE PTY LTD (PROVISIONAL LIQUIDATOR APPOINTED)
THIRD RESPONDENT

THE FUND ADMINISTRATORS PTY LTD
FOURTH RESPONDENT

REINSAG NOMINEES PTY LTD
FIFTH RESPONDENT

SPECTRUM FUND ADMINISTRATION PTY LTD
SIXTH RESPONDENT

AUSTRALIAN SECURED MORTGAGES PTY LTD
SEVENTH RESPONDENT

PROJECT FINANCE (QLD) PTY LTD
EIGHTH RESPONDENT

ANNE SHIRLEY CORBETT
NINTH RESPONDENT

CROFTBY DOWNS PTY LTD
TENTH RESPONDENT

THORNVILLE PTY LTD IN ITS OWN CAPACITY AND IN ITS CAPACITY AS TRUSTEE OF THE ANSCOR EXECUTIVE INCENTIVE TRUST AND THE THORNVILLE EXECUTIVE INCENTIVE TRUST
ELEVENTH RESPONDENT

ANSCOR INVESTMENTS PTY LTD
TWELFTH RESPONDENT

PACIFIC INTERNATIONAL ASSET MANAGEMENT LIMITED
THIRTEENTH RESPONDENT

JUDGE:

DRUMMOND J

DATE OF ORDER:

24 MAY 2001

WHERE MADE:

BRISBANE

THE COURT DECLARES THAT:
1.The ninth respondent is refused leave to be represented by Mr Corbett in defending the proceedings against her.
2.The thirteenth respondent is refused leave to be represented by Mr Corbett in defending the proceedings against it.

THE COURT ORDERS THAT:
1.Subject to Order 3, the first, tenth, eleventh and twelfth respondents be refused leave for Mr Corbett to represent them in the further defence of the proceedings.
2.The first and the ninth to twelfth respondents have leave to amend their amended defence in accordance with the reasons published this day by delivery of a document to be entitled…

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.

Continue reading Clout (Trustee) v Anscor Pty Ltd

Details

AGLC: Clout (Trustee) v Anscor Pty Ltd [2001] FCA 604
Case: [2001] FCA 604
Decision Date: 24 MAY 2001

CaseChat Overview and Summary

The case of Clout (Trustee) v Anscor Pty Ltd involved the trustee, Clout, as the plaintiff and Anscor Pty Ltd and others as the defendants. The dispute arose from issues surrounding the administration of a trust and the defendants' conduct in relation to the trust. The matter was heard in the Supreme Court of New South Wales. The primary focus of the case was on the legal authority of a barrister to represent multiple defendants in the same proceedings and the appropriateness of amending the defence in the midst of the trial.

The legal issues before the court included whether the barrister, Mr Corbett, had the requisite authority to represent the first, tenth, eleventh, and twelfth respondents, and if so, under what conditions. Additionally, the court had to consider whether the respondents should be granted leave to amend their defence and whether the trial should be adjourned to accommodate this amendment.

The court held that Mr Corbett was not permitted to represent the first, tenth, eleventh, and twelfth respondents in the further defence of the proceedings. However, it granted leave for Mr Corbett to amend the defence to include a specific issue, subject to certain conditions. The amendment was to be limited to addressing the issue specified in the court’s reasons. Furthermore, the court denied the respondents' request to adjourn the trial, asserting that such a delay would not be in the interest of justice.

In summary, the court's orders were to refuse leave for Mr Corbett to represent the specified respondents, allow the respondents to amend their defence under particular conditions, grant leave for Mr Corbett to represent the respondents in the further defence of the proceedings concerning the amendment, and deny the respondents' request for an adjournment of the trial.

Orders

Orders of the court

1. Subject to Order 3, the first, tenth, eleventh and twelfth respondents be refused leave for Mr Corbett to represent them in the further defence of the proceedings.

2. The first and the ninth to twelfth respondents have leave to amend their amended defence in accordance with the reasons published this day by delivery of a document to be entitled “Amendment to Defence pursuant to order of 23 May 2001” which sets out, with proper particulars, the issue in the document entitled “Form 19” being part of exhibit “3” which is prefaced by the words “insert: 12(aab)”.

3. Mr Corbett have leave to represent the first, tenth, eleventh and twelfth respondents in the further defence of the proceedings on terms that such leave is limited to:

(a) Mr Corbett’s entitlement to amend the amended defence of the first and tenth to twelfth respondents to raise the issue referred to in Order 2; and

(b) To represent those respondents in the further defence of the proceedings but only in respect of the issue referred to in sub-paragraph (a) above.

4. The respondents’ request to adjourn the trial be refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DRUMMOND J

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Ratio Decidendi

Legal Principle Established

Established by: DRUMMOND J

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IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7308 OF 1998

JUDGE:	DRUMMOND J
DATE OF ORDER:	24 MAY 2001
WHERE MADE:	BRISBANE