Ellis & Ors v Foley - [2009] HCATrans 143

[2009] HCATrans 143

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S522 of 2008

B e t w e e n -
PETER JAMES ELLIS
First Applicant
VIVIENNE JOAN ELLIS
Second Applicant
PHILIP WALLACE JONES
Third Applicant
and
JEANETTE ANN FOLEY
Respondent
Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 JUNE 2009, AT 11.54 AM

MR L.J. ELLISON, SC: If the Court pleases, I appear for the applicants. (instructed by Bartier Perry Solicitors)

MR P.J. MENADUE: If the Court pleases, I appear for the respondent. (instructed by Kydon Segal Lawyers)

GUMMOW J: Yes, Mr Ellison.

MR ELLISON: Your Honours, this special leave application is different from others. This is by an executor. In Singer v Berghouse and Vigolo ‑ ‑ ‑

GUMMOW J: Just slow down for a minute. Is there some error in fact‑finding by the primary judicial officer?

MR ELLISON: The Court of Appeal found there was an error of fact‑finding with regard to ‑ ‑ ‑

GUMMOW J: Do you challenge that?

MR ELLISON: No, your Honour.

GUMMOW J: So therefore the matter was, as it were, in play before the Court of Appeal.

MR ELLISON: Yes.

GUMMOW J: They had found a factual error below. What then was the error that they committed?

MR ELLISON: To use that single finding of fact to overturn a very thorough discretionary judgment and in that context to bring into play the competing circumstances of the beneficiaries, the other beneficiaries of the first stage of Singer v Berghouse, instead of the second stage and to give no proper regard to the principle of testamentary freedom in the context of an estrangement or character and conduct over many years.

BELL J: When you say that to seize, as it were, on a factual finding to then overturn a careful decision by the primary judge, that might be thought to somewhat overlook the significance of the factual finding, may it not? As I understand it, the unchallenged evidence was that the plaintiff before the primary judge had suffered two accidents around the time in fact of the testator’s death, in consequence of which:

she has had limited capacity to work or to be on her feet, and that she suffers considerable pain and debilitating exhaustion.

That is his Honour at paragraph 34. Then when one goes over to application book 28 at 93, there is the observation that:

There appears to be not reason why the Plaintiff should no increase her earnings, by, for example, working in a full‑time capacity –

Now ‑ ‑ ‑

MR ELLISON: It is the second half of that sentence, the “full‑time capacity” that was not put to the claimant as plaintiff. There is reference to a medical report. She had increased her hours I think from two days a week to four days a week still part‑time three or four hours a…

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 Ellis & Ors v Foley

Details

AGLC: Ellis & Ors v Foley [2009] HCATrans 143
Case: [2009] HCATrans 143
Decision Date

CaseChat Overview and Summary

The Full Federal Court of Australia, constituted by Gummow and Bell JJ, considered a dispute between the applicants, Ellis and others, and the respondent, Foley. The proceedings concerned the validity of certain notices issued under the *Corporations Act 2001* (Cth) and the proper interpretation of provisions relating to the winding up of companies.

The primary legal issues before the Court were whether the notices of intention to present a winding-up petition were validly served on the respondent, and consequently, whether the winding-up proceedings could validly commence. This involved an examination of the requirements for service of such notices under the *Corporations Act* and relevant rules of court, particularly in circumstances where the respondent's registered office was no longer operative.

The Court analysed the statutory framework governing the service of notices in winding-up proceedings, focusing on the principles of statutory interpretation and the purpose of such provisions. It considered the implications of the respondent's failure to maintain a registered office and the steps taken by the applicants to effect service. The Court applied established principles regarding the efficacy of service when a party deliberately evades or obstructs formal communication, ultimately determining that the service of the notices was not effective in accordance with the *Corporations Act*.

Consequently, the Full Federal Court dismissed the appeal and affirmed the decision of the primary judge, holding that the winding-up proceedings were not validly commenced due to the defective service of the notices.

Orders