Frontlink Pty Ltd v Feldman - [2012] VSC 530

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2011 01075

B E T W E E N :

FRONTLINK PTY LTD (ACN 074 034 496)	Plaintiff
- and -
CYNTHIA FELDMAN (in her capacity and in her capacity as holding letters of administration ad colligendum bona of the intestate estate of Derek Joseph Feldman (deceased))	Defendant

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JUDGE:	RANDALL AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2011
DATE OF JUDGMENT:	2 November 2012
CASE MAY BE CITED AS:	Frontlink Pty Ltd v Feldman
MEDIUM NEUTRAL CITATION:	[2012] VSC 530

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PRACTICE AND PROCEDURE – Plaintiff’s application for summary judgement – deceased entered into multiple agreements with plaintiff as owner of the properties – deceased and defendant acted as farm consultants to plaintiff – extent to which defendant held letters of administration ad colligendum bona for deceased – Civil Procedure Act 2010, ss 61, 63-64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Cook	Belleli King & Associates
For the Defendant	Mr M.V. McInnis	Mason Black Lawyers Pty

HIS HONOUR:

Derek Feldman (“the deceased”) died intestate on 13 October 2010.

The defendant, Ms Cynthia Feldman, is the deceased’s widow and was the plaintiff in proceeding S PRB 2010 16297 in which she sought the grant of letters of administration ad colligendum bona. On 2 December 2010, the Honourable Justice Osborne made orders in the probate proceedings granting to Mrs Feldman limited letters of administration ad colligendum bona.

Prior to his death, the deceased had entered into three agreements with the plaintiff, Frontlink Pty Ltd, as owner of three different properties. Those agreements were as follows:

(a)The Grices’ Road agreement dated 20 October 2002 between the plaintiff as owner and the defendant in her own right and the deceased.
(b)The Soldiers Road agreement dated 1 July 2003 between the plaintiff and the deceased.
(c)The Pound Road agreement dated 1 April 2005 between the plaintiff and the deceased.

Each of the three agreements were between the plaintiff, as owner of the particular property, and the deceased, and the deceased and the defendant as applicable as farm consultants. The plaintiff assigned the right to receive the profits from the farming activities undertaken by the deceased, or the deceased and the defendant with respect to the Grices’ Road property, in consideration of an annual payment and reimbursement of outgoings such as council and water rates.

The plaintiff has proceeded against the defendant in both her personal capacity (with respect to the Grices’ Road property) and in respect of her capacity as holding Letters of Administration ad colligendum bona of the intestate estate of the deceased. The defendant, among other things, has pleaded that she “denies that there is any claim against her as a person holding Letters of Administration ad colligendum bona of the estate of the deceased pursuant to the orders of the Supreme Court of Victoria made in proceeding 2010/16297 and otherwise seeks to refer to the terms 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.

Continue reading Frontlink Pty Ltd v Feldman

Details

AGLC: Frontlink Pty Ltd v Feldman [2012] VSC 530
Case: [2012] VSC 530
Decision Date: 2 November 2012

CaseChat Overview and Summary

Frontlink Pty Ltd applied for summary judgment against Feldman, who had acted as a farm consultant with the deceased, who had entered into multiple agreements with the plaintiff. The deceased had passed away, and Feldman was holding letters of administration ad colligendum bona for the deceased. The central issue before the court was the extent to which Feldman was bound by the agreements made with the deceased and whether the plaintiff could secure summary judgment against Feldman. This hinged on the interpretation of sections 61, 63, and 64 of the Civil Procedure Act 2010.

The court examined whether Feldman, in his capacity as the deceased's consultant and administrator, was personally liable under the agreements. The court considered whether Feldman had assumed the obligations of the deceased's contracts and whether he had acted in a manner that would bind him personally. The court held that Feldman, acting in his professional capacity, was not personally liable for the deceased's contractual obligations. The court concluded that Feldman, in his role as administrator, had not engaged in any acts that would bind him personally to the agreements. Consequently, the court dismissed the plaintiff's application for summary judgment against Feldman.

The court found that Feldman, in his capacity as an administrator, had not acted in a manner that would personally bind him to the deceased's contractual obligations. The court dismissed the plaintiff's application for summary judgment, finding that Feldman was not personally liable for the deceased's agreements. The court's decision hinged on the precise interpretation of Feldman's role and the extent of his personal liability under the agreements.

Orders