BANKRUPTCY – Initial application for relief under s.66G of the Conveyancing Act 1919 (NSW) – short minutes of order made by consent by a Registrar – orders provided for a stay to prepare payout figure to annul bankruptcy – dispute in respect to terminology within order – Application in a Case filed – Application in a Case discontinued – Costs.
ELIZABETH ANN FLEMING (PREVIOUSLY KNOWN AS ELIZABETH OCCLESHAW)
Second Applicant:
SCOTT DARREN PASCOE
First Respondent:
LINDSEY JANE DYASON
Second Respondent:
ARTHUR LINDEN DYASON
File Number:
SYG 686 of 2010
Judgment of:
Lloyd-Jones FM
Hearing date:
3 August 2010
Delivered at:
Sydney
Delivered on:
3 September 2010
REPRESENTATION
Counsel for the Applicant:
Brian Skinner
Solicitors for the Applicant:
Goldrick Farrell Mullan with Alexander & Associates Solicitors
Counsel for the Respondents:
Mr H Stowe
Solicitors for the Respondents:
Fishburn Watson O’Brien
ORDERS
The orders made in this matter on 4 May 2010, by consent of the parties, are vacated.
The application filed on 29 March 2010 is discontinued.
No order as to costs.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY
SYG 686 of 2010
ELIZABETH ANN FLEMING & ANOR
Applicant
And
LINDSEY JANE DYASON
First Respondent
ARTHUR LINDEN DYASON
Second Respondent
REASONS FOR JUDGMENT
The proceedings
On 29 March 2010 an application was filed in this Court seeking orders pursuant to ss.30, 58(1)(b) and s.58(6) of the Bankruptcy Act 1966 (Cth) (“the Act”) and ss.66G, 77(1)(e) – (g) of the Conveyancing Act 1919 (NSW) and s.18 of the FederalMagistrates Court Act 1999 (Cth). This application was listed for hearing before a Registrar of this Court on 4 May 2010. At that hearing, the parties handed up short minutes of order which effectively put an end to the matter. Included in the terminology of those draft orders was a stay of the orders which were provided for the Applicant to provide a pay-out figure to annul the Bankruptcy of the Second Respondent, Arthur Linden Dyason.
A provision of the minutes of order were that they were to be complied with by 11 May 2010. Registrar Hedge referred the matter to this Court for execution of the consent orders and I issued sealed orders on 4 May 2010.
Subsequent to that date, a dispute has arisen concerning the terminology contained within those orders with respect to the calculation of the pay-out figure. Consequently, a Notice of Motion was filed in Court…
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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Details
AGLC
Fleming v Dyason [2010] FMCA 669
Case
[2010] FMCA 669
Decision Date
CaseChat Overview and Summary
The matter of Fleming v Dyason was heard in the Federal Court of Australia, involving the parties, Fleming and Dyason. The nature of the dispute centred around an application filed by Fleming against Dyason, which was subsequently subject to a consent order made on 4 May 2010. The parties later agreed to discontinue the application, leading to the current proceedings seeking to vacate the earlier orders. The legal issues before the court involved the validity and circumstances under which consent orders could be vacated, as well as the procedural fairness in handling the discontinuance of the application. The court had to determine whether the parties' agreement to vacate the orders was legitimate and whether the procedures followed were appropriate.
The court examined the principles governing consent orders and their rescission, noting that such orders are generally binding but can be set aside if there is evidence of a change in circumstances or if the order was procured through misrepresentation or fraud. In this instance, the court considered the affidavits provided by both parties, which detailed their agreement to vacate the orders and discontinue the application. The court found that the parties' consent was genuine and that the application's discontinuance was handled in a procedurally fair manner. The court was satisfied that there was no evidence of any wrongdoing or unfairness in the parties' agreement.
In light of the evidence presented and the absence of any procedural defects, the court decided to vacate the orders made on 4 May 2010 by consent of the parties. The application filed on 29 March 2010 was also discontinued as per the agreement. The court emphasised the importance of mutual consent and procedural fairness in such matters. The decision reflected the court's recognition of the parties' autonomy to manage their disputes and agreements, provided that the processes were transparent and free from coercion. The court made no order as to costs, reflecting the consent-based resolution of the matter.
Orders
Orders of the court
1.
The orders made in this matter on 4 May 2010, by consent of the parties, are vacated.
2.
The application filed on 29 March 2010 is discontinued.