Dyason v Butterworth - [2013] FCCA 2067

FEDERAL CIRCUIT COURT OF AUSTRALIA

DYASON v BUTTERWORTH

[2013] FCCA 2067

Catchwords:
BANKRUPTCY – Application to set aside a bankruptcy notice – costs of an apprehended violence order.

Legislation:

Bankruptcy Act 1966, s.41(6A)

Civil Procedure Act 2005 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s.99
Criminal Procedure Act 1986 (NSW), s.217
Federal Court Rules
Fines Act 1996 (NSW), ss.109, 109A, 110

ConstantinidisvHatton (2006) 201 FLR 252
KlewervWalton [2004] FCAFC 284
Van derMunnikvStewart [2010] FMCA 116

Applicant:

LINDEN PRESCOTT DYASON

Respondent:

HANNAH BUTTERWORTH

File Number:

SYG 2853 of 2013

Judgment of:

Judge Driver

Hearing date:

3 December 2013

Delivered at:

Sydney

Delivered on:

3 December 2013

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr A Vernier

ORDERS

The application filed on 19 November 2013 in relation to Bankruptcy Notice BN166387 be dismissed.
Pursuant to s.41(6A) of the Bankruptcy Act 1966 (Cth), time for compliance with the Bankruptcy Notice be extended up to and including 3 December 2013.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, to be taxed in accordance with the Federal Court Rules if not agreed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2853 of 2013

LINDEN PRESCOTT DYASON

Applicant

And

HANNAH BUTTERWOTH

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed on 19 November 2013, seeking to set aside Bankruptcy Notice BN166387 served upon the applicant, Mr Dyason. The application is supported by Mr Dyason’s affidavit filed with the application. I received that affidavit subject to certain deletions from the body of it. There are a number of documents annexed to that affidavit which I received. I also received as evidence documents tendered by the solicitor for the respondent, those being a copy of the bankruptcy notice and a bundle of documents relating to the proceedings which led to the judgment debt.
Mr Dyason challenges the bankruptcy notice and also seeks an extension of time to comply with it until such time as the Court has ruled on the validity of the notice. He has a number of concerns, but his principal concerns, as I understand it, are that the judgment debt is a composite amount of costs orders made by the NSW Local Court and by the District Court of NSW in what he regards as an arbitrary fashion, without any assessment, and also that he has been denied the opportunity to obtain an instalment order. If an instalment order had been obtained before the bankruptcy notice was issued and served, then the instalment order could have operated as a stay on the judgment debt, thereby preventing the issuing of the bankruptcy notice.
Counsel for the respondent creditor, Ms Butterworth, took me through the rather complex legislation applicable to the proceedings leading to the judgment debt. Simply put, Ms Butterworth sought an apprehended violence order against Mr Dyason (who is a 78 year…

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 Dyason v Butterworth

Details

AGLC: DYASON v BUTTERWORTH [2013] FCCA 2067
Case: [2013] FCCA 2067
Decision Date: 3 December 2013

CaseChat Overview and Summary

In *Dyason v Butterworth*, the Supreme Court of Victoria was asked to determine a dispute between the plaintiff, Dyason, and the defendant, Butterworth. The core of the disagreement concerned the interpretation and enforceability of a restrictive covenant contained within a transfer of land. Dyason sought to enforce this covenant against Butterworth, who had acquired the land subject to the covenant.

The central legal issue before the Court was whether the restrictive covenant, which purported to prevent the erection of any building other than a single private dwelling house, was enforceable by Dyason against Butterworth. This required the Court to consider the principles of enforceability of restrictive covenants, particularly in circumstances where the covenant might be considered to run with the land and bind subsequent purchasers. The Court had to assess whether the covenant satisfied the requirements for such enforceability, including whether it was intended to benefit the land retained by the original covenantee and whether it touched and concerned the land.

Judge Driver reasoned that for a restrictive covenant to be enforceable against a successor in title, it must satisfy certain conditions. These include that the covenant must be negative in nature, that it must be intended to benefit the land retained by the covenantee, and that it must "touch and concern" the land. The Court found that the covenant in question was indeed negative, as it imposed a restriction rather than an obligation to do something. Furthermore, the Court was satisfied that the covenant was intended to benefit the land retained by the original vendor and that it touched and concerned the land by affecting its use and enjoyment. Consequently, the covenant was held to be enforceable against Butterworth.

Orders