Fletcher v Westpac

Case [2012] WASCA 154


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :  THE COURT OF APPEAL (WA)
CITATION  : FLETCHER -v- WESTPAC [2012] WASCA 154
CORAM : PULLIN JA

NEWNES JA MURPHY JA

HEARD : 22 JUNE 2012
DELIVERED : 9 AUGUST 2012
FILE NO/S : CACV 129 of 2011
BETWEEN : 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)

Legislation:

Bankruptcy Act 1966 (Cth), s 60(2), s 60(4)

Result:

Appeal stayed under Bankruptcy Act s 60(2)

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Mr A J Mason

Solicitors:

Appellant : In person
Respondent : Gadens Lawyers

Case(s) referred to in judgment(s):

Baker v Sheridan [2005] NSWCA 408
Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545
Cox v Journeaux [No 2] (1935) 52 CLR 713
Cummings v Claremont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124
Duckworth v Water Corporation [2012] WASC 30
Fletcher v Westpac [2011] WASC 277
Freeman v Joiner [2005] FCAFC 149
Mannigel v Hewlett Phelps [1991] NSWCA 186
Moss v Eaglestone [2011] NSWCA 404
Owens v Comlaw (No 62) Pty Ltd [2006] VSCA 151; (2006) 201 FLR 275
Re Lofthouse [2001] FCA 25; (2001) 107 FCR 151
Stobbart v Mocnaj (1996) 16 WAR 318
Temsign Pty Ltd v Biscen Pty Ltd (1998) 20 WAR 47

[2012] WASCA 154

PULLIN JA NEWNES JA

  1. PULLIN JA: I agree with Newnes JA.

  2. 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…

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Fletcher v Westpac [2012] WASCA 154
Case
[2012] WASCA 154
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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.

Orders

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Background

Background to the litigation

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Evidence

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Decision

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Ratio Decidendi

Legal Principle Established

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