Frost v Sheahan

Case [2012] FCAFC 46


FEDERAL COURT OF AUSTRALIA

Frost v Sheahan as Trustee of the Bankrupt Estate of Allen Gordon Frost

[2012] FCAFC 46  

Citation: Frost v Sheahan as Trustee of the Bankrupt Estate of Allen Gordon Frost [2012] FCAFC 46
Appeal from: Sheahan (Trustee) in the matter of Frost (Bankrupt) v Frost (No 2) [2011] FCA 686
Parties: ALLEN GORDON FROST and PAUL ANTHONY RICHARDSON v JOHN SHEAHAN AS TRUSTEE OF THE BANKRUPT ESTATE OF ALLEN GORDON FROST
File number: SAD 165 of 2011
Judges: FINN, COWDROY AND FLICK JJ
Date of judgment: 28 March 2012
Catchwords:

BANKRUPTCY – whether property held on trust – findings of fact – impermissible attempt to re-canvass evidence on appeal – no appellable error – a mortgage – whether a transfer of property

PRACTICE AND PROCEDURE – leave to amend Notice of Appeal – overturning factual conclusions on appeal – denial of procedural fairness

Legislation: Bankruptcy Act1966 (Cth) ss 120, 121
Federal Court of Australia Act1976 (Cth) s 24
Law of Property Act 1936 (SA) s 29
Trade Practices Act 1974 (Cth) s 52
Cases cited:

A & D Douglas Pty Ltd v Lawyers Private Mortgages Pty Ltd [2006] FCA 690 cited
Australian Super Pty Ltd v Woodward (2009) 262 ALR 402 cited
Attorney-General (Qld) v Lawrence [2011] QCA 347 cited
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 considered
Coulton v Holcombe (1986) 162 CLR 1 cited
Construction, Forestry, Mining and Energy Union v Alfred [2011] FCAFC 13 cited
CPI Group Ltd v Stora Enso Australia Pty Ltd [2007] FCAFC 160 cited
Devries v Australian National Railways Commission (1993) 177 CLR 472 considered
Dovuro Pty Ltd v Wilkins (2005) 105 FCR 476 cited
Eric Preston Pty Ltd v Euroz Securities Ltd (2011) 274 ALR 705 cited
Fox v Percy (2003) 214 CLR 118 considered
Knight v Beyond Properties Pty Ltd [2007] FCAFC 170 cited
Neeson v Chief Executive Officer of Centrelink (2006) 154 FCR 489 cited
New Tel Ltd, Re (in liq) (No 4) [2008] FCA 1085 cited
Official Trustee v Pastro [1999] FCA 1631 considered
Pastro v Official Trustee in Bankruptcy [2000] FCA 744 considered
Peldan v Anderson (2006) 227 CLR 471 considered
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 cited
Poulet Frais Pty Ltd v Silver Fox Company Pty Ltd (2005) 220 ALR 211 applied
Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525 considered
Sheahan v Frost [2011] FCA 356 cited
Sheahan v Frost (No 2) [2011] FCA 686 affirmed
Shepherd v R [2011] NSWCCA 245 cited
Sobey v Nicol and Davies (2007) 245 ALR 389 cited
Sutherland v Brien (1999) 149 FLR 321 cited
Walsh v Law Society of New South Wales (1999) 198 CLR 73 cited
Yousif v Commonwealth Bank of Australia (2010) 193 IR 212 cited

Justice David Ipp, “Problems with Fact-Finding” (2006) 80 Australian Law Journal 667
Peter Gillies and Serge Galitsky, “Is the Judge Sovereign in Fact?” (2006) 28 Australian Bar Review 192

Date of hearing:

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Frost v Sheahan [2012] FCAFC 46
Case
[2012] FCAFC 46
Decision Date

CaseChat Overview and Summary

The case of Frost v Sheahan involved a dispute regarding the property held on trust and the nature of a mortgage, ultimately brought before the court. The respondents sought to challenge the primary judge’s findings, but the appeal was dismissed. The legal issues centered around whether the property was held on trust, the characterization of a mortgage, and the procedural fairness of the appeal process. The court examined the primary judge's findings of fact, noting that the appeal amounted to an attempt to re-canvass the evidence rather than identifying any legal or factual errors. The court concluded that the primary judge’s findings were supported by the evidence and assessments of credibility, which formed a critical part of his reasoning.

The court’s reasoning highlighted the importance of the primary judge’s credibility assessments, emphasizing that they significantly influenced the factual conclusions reached. The appeal failed as it did not identify any appellable errors and instead attempted to persuade the court to reach different factual conclusions. The court underscored that the primary judge's assessments of credibility, when considered alongside the evidence, rendered any challenge by the appellants insurmountable. This approach ensured that the factual findings were robust and supported by the overall evidence presented. Additionally, the court addressed procedural fairness, noting that the appeal process had been conducted correctly, and no procedural errors were identified.

The court’s decision to dismiss the appeal and order the appellants to pay the respondent’s costs was based on the absence of any substantive errors in the primary judge’s findings and the procedural integrity of the appeal process. The court also considered the implications of the appeal’s failure on the issue of costs, noting that the appellants were not entitled to costs related to their own time if they were litigants in person, but could claim disbursements. Ultimately, the appeal’s dismissal and the costs order reflected the court’s stance that the primary judge’s decisions were well-founded and that the appeal lacked merit.

Orders

Orders of the court

1. The appeal be dismissed.

2. The Appellants pay the costs of the Respondent.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Richardson’s challenge to the decision of the primary judge is thus rejected. It is unnecessary to address a Notice of Contention as filed on 1 August 2011 on behalf of the respondent.CONCLUSIONS The appeal of Messrs Frost and Richardson is to be dismissed. The appeal of both Messrs Frost and Richardson amounts to no more, with respect, than a thinly disguised attempt to invite this Court to reach a contrary factual conclusion to that reached by the primary judge. In the absence of any discernible error committed by the primary judge, senior counsel for Messrs Frost and Richardson impermissibly sought to re-canvass the evidence that was before the primary judge with a view to persuading this Court not that His Honour’s decision was vitiated by legal or factual error, but simply, that different factual conclusions should be reached. Even in the absence of His Honour’s reliance upon his own assessment as to the credibility of witnesses, His Honour’s factual conclusions based upon the balance of the evidence are difficult to impugn. When the primary judge’s assessments of credibility are also taken into account, any attempts on the part of Messrs Frost and Richardson to challenge those conclusions becomes insurmountable. It would be a mistake to attempt any review of the primary judge’s factual conclusions divorced from his assessment as to the credibility of witnesses. Those assessments of credibility formed an important part of His Honour’s reasoning process and the conclusions reached. But such a review provides a useful background against which the influence of credibility findings can be tested. Such a review serves to assist in reaching a conclusion as to whether findings of fact which may otherwise not have been open to the primary judge only became supportable when assessments as to credibility were overlaid. In this proceeding the findings of fact made by the primary judge, it is concluded, are supported by his assessment of the entirety of the evidence and only further supported by his adverse assessments as to the credibility of Messrs Frost and Richardson. There is no reason why costs should not follow the event such that the appellants are to pay the costs of the respondent. Had the appeal on the part of Mr Richardson been successful, separate consideration would need to have been given to the extent of any costs order that may have been made in his favour given the fact that he was apparently also the solicitor on the record. A litigant in person, it will be recalled, is not entitled to his costs to the extent that they are referable to his own time (Neeson v Chief Executive Officer of Centrelink [2006] FCA 1107 at [24], 154 FCR 489 at 501) but is entitled to his disbursements (Australian Super Pty Ltd v Woodward [2009] FCAFC 168 at [59] to [61], 262 ALR 402 at 414 per Finkelstein, Greenwood and Logan JJ). Notwithstanding conflicting authorities, it has been held in this Court that costs may be awarded to a solicitor acting for himself: A & D Douglas Pty Ltd v Lawyers Private Mortgages Pty Ltd [2006] FCA 690 at [10] per Dowsett J; Re New Tel Ltd (in liq) (No 4) [2008] FCA 1085. But Mr Richardson’s lack of success renders it unnecessary to consider further the issue of any costs to which he may have been entitled. ORDERSThe Orders of the Court are:1.The appeal be dismissed.2.The Appellants pay the costs of the Respondent.

Ratio Decidendi

Legal Principle Established

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