BRIAN FLETCHER AS TRUSTEE OF THE BRIAN FLETCHER FAMILY TRUST Appellant
AND
WESTPAC Respondent
ON APPEAL FROM:
Jurisdiction
:
SUPREME COURT OF WESTERN AUSTRALIA
Coram
: ALLANSON J
Citation
:
BRIAN FLETCHER AS TRUSTEE OF THE BRIAN FLETCHER FAMILY TRUST -v- ST GEORGE BANK LTD [No 2] [2011] WASC 277
File No
:
CIV 2186 of 2006
[2012] WASCA 154
Catchwords:
Practice and procedure - Appellant claimed as trustee of family trust against respondent - Claim dismissed - Appellant bankrupt after instituting appeal - Appellant sought to pursue appeal - Appeal stayed under Bankruptcy Act 1966 (Cth) s 60(2) - Appeal not in respect of personal injury or wrong under Bankruptcy Act s 60(4)
NEWNES JA: This appeal has been listed to consider whether the appellant may continue with the appeal. That question arises because after he commenced the appeal the appellant became bankrupt. It is common ground between the parties that he is entitled to pursue the appeal only if it constitutes 'an action … in respect of [a] personal injury or wrong' within the meaning of s 60(4) of the Bankruptcy Act 1966 (Cth) (the Act).
Background
3 The appellant's appeal arises from the sale of a property that he
owned in Bull Creek (the Bull Creek property). Prior to the sale, the appellant leased the Bull Creek property to a third party which used it to operate a health club. There were two mortgages over it. The respondent held the second mortgage, but had priority under a deed with the first mortgagee. The respondent was the appellant's banker. In July 2001, the first mortgagee sold the land. Pursuant to the deed of…
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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Fletcher v Westpac [2012] WASCA 154
Case
[2012] WASCA 154
Decision Date
CaseChat Overview and Summary
In the matter of Fletcher versus Westpac, the dispute arose when the appellant, as the trustee of a family trust, filed a claim against the respondent. The appellant alleged that Westpac had breached certain contractual obligations. The case was heard and dismissed by the court, and subsequently, the appellant filed an appeal. Following the filing of the appeal, the appellant was declared bankrupt. Despite this, the appellant sought to continue the appeal. The court had to determine whether the appeal could proceed under the Bankruptcy Act 1966 (Cth). One of the key legal issues was whether the appeal could be stayed under section 60(2) of the Act. Another issue was whether the appeal related to a personal injury or a wrong, as stipulated under section 60(4) of the Act. The court found that the appeal was not in respect of a personal injury or wrong, and therefore, it was not subject to the provisions of section 60(4). Consequently, the court decided that the appeal could be stayed under section 60(2) of the Bankruptcy Act 1966 (Cth). The appeal was thus stayed pending the resolution of the appellant's bankruptcy proceedings.