Dare v Doolan - [2004] FCA 461

FEDERAL COURT OF AUSTRALIA
Dare v Doolan [2004] FCA 461
Bankruptcy Act 1966 (Cth)
Adsett v Berlouis (1992) 109 ALR 100
Re Crawford Ex parte The Trustee (1943) 13 ABC 201
Macks v Ardalich [1999] FCA 679
Jefferson v Official Trustee in Bankruptcy (2000) 175 ALR 671
Mayne v Jaques (1960) 101 CLR 169
TRACY JOY DARE v WILLIAM EDWARD DOOLAN, WARWICK MCDONALD, ROMAN POLLACH, DOMINIC GUINEA, AND SOUTHBANK PROPERTY PTY LTD ACN 058 053 384 TRADING AS REMAX SOUTHBANK PROPERTY
Q71 OF 2004
COOPER J
BRISBANE
20 APRIL 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q71 OF 2004

BETWEEN:

TRACY JOY DARE
APPLICANT

AND:

WILLIAM EDWARD DOOLAN
FIRST RESPONDENT

WARWICK MCDONALD, ROMAN POLLACH AND DOMINIC GUINEA
SECOND RESPONDENTS

SOUTHBANK PROPERTY PTY LTD ACN 058 053 384 TRADING AS REMAX SOUTHBANK PROPERTY
THIRD RESPONDENT

JUDGE:

JUSTICE COOPER

DATE OF ORDER:

20 APRIL 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application for interlocutory relief is dismissed.
2.The applicant pay the second and third respondents’ costs of and incidental to the application to be taxed if not agreed.
3.The applicant bear her own costs of the application without recourse to the bankrupt’s estate.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q71 OF 2004

BETWEEN:

TRACY JOY DARE
APPLICANT

AND:

WILLIAM EDWARD DOOLAN
FIRST RESPONDENT

WARWICK MCDONALD, ROMAN POLLACH AND DOMINIC GUINEA
SECOND RESPONDENTS

SOUTHBANK PROPERTY PTY LTD ACN 058 053 384 TRADING AS REMAX SOUTHBANK PROPERTY
THIRD RESPONDENT

JUDGE:

JUSTICE COOPER

DATE:

20 APRIL 2004

PLACE:

BRISBANE

REASONS FOR JUDGMENT

The applicant is the trustee of the bankrupt estate of William Edward Doolan. She was appointed on 2 June 1999. Doolan ceased to be a bankrupt when he was automatically discharged under the provisions of the Bankruptcy Act 1966 (Cth) (‘the Act’) on 24 June 2002.
The creditors of the bankrupt estate, on 29 and 30 March 2004, requisitioned the applicant to call a meeting of creditors which would consider a resolution pursuant to s 181 of the Act for the removal of the applicant as trustee and the appointment of another trustee in her stead. That meeting is to be held today.
The applicant has sought interlocutory and permanent injunctive relief restraining the first, second and third respondents ‘from putting to any meeting of creditors a proposal for a resolution to remove the applicant as trustee of the estate of the first respondent’ and further ‘from voting in favour of any resolution put to a creditors’ meeting to remove the applicant as trustee of the estate of the first respondent.’
In support of her application, the applicant filed an affidavit of 121 pages, together with 95 annexures totalling approximately 750 papers. This material is cross-referenced to 14 volumes of material filed in proceedings instituted in the bankruptcy. The material purports to set out and justify the applicant’s conduct of her trusteeship and the incurring…

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 Dare v Doolan

Details

AGLC: Dare v Doolan [2004] FCA 461
Case: [2004] FCA 461
Decision Date: 20 APRIL 2004

CaseChat Overview and Summary

The applicant, Dare, sought interlocutory relief against the respondents, Doolan and others, in the Federal Court of Australia. The application was made in the context of a bankruptcy proceeding. Dare aimed to prevent the respondents from enforcing certain debts against her, arguing that the debts were not properly documented or owed. The respondents, including a trustee in bankruptcy and creditors, opposed the application, asserting the validity of their claims.

The primary legal issue before the court was whether the applicant had demonstrated a sufficiently strong case to merit interlocutory relief, particularly in light of the requirement to establish a serious question to be tried. The court considered the burden of proof required for such relief and the likelihood of the applicant succeeding at the trial. Additionally, the court assessed whether the applicant had acted with due diligence in pursuing her claims and whether the application was made in good faith.

In determining the application, the court found that the applicant had not met the necessary threshold to justify interlocutory relief. The evidence presented did not convincingly demonstrate a serious question to be tried, nor did it show that the applicant had acted with the requisite diligence. The court emphasised that interlocutory relief is not a substitute for a full trial and should only be granted in compelling circumstances. Consequently, the application was dismissed, and the applicant was ordered to pay the costs of the respondents. Furthermore, the applicant was directed to bear her own costs without recourse to the bankrupt’s estate.

Orders

Orders of the court

1. The application for interlocutory relief is dismissed.

2. The applicant pay the second and third respondents’ costs of and incidental to the application to be taxed if not agreed.

3. The applicant bear her own costs of the application without recourse to the bankrupt’s estate.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

COOPER J

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Ratio Decidendi

Legal Principle Established

Established by: COOPER J

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IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q71 OF 2004

BETWEEN:	TRACY JOY DARE APPLICANT
AND:	WILLIAM EDWARD DOOLAN FIRST RESPONDENT WARWICK MCDONALD, ROMAN POLLACH AND DOMINIC GUINEA SECOND RESPONDENTS SOUTHBANK PROPERTY PTY LTD ACN 058 053 384 TRADING AS REMAX SOUTHBANK PROPERTY THIRD RESPONDENT
JUDGE:	JUSTICE COOPER
DATE OF ORDER:	20 APRIL 2004
WHERE MADE:	BRISBANE

JUDGE:	JUSTICE COOPER
DATE:	20 APRIL 2004
PLACE:	BRISBANE