FEDERAL COURT OF AUSTRALIA
Garrett v Duncan [2015] FCA 255
Citation: Garrett v Duncan [2015] FCA 255 Appeal from: Application for leave to appeal: Garrett v Duncan [2014] FCA 1260 Parties: ANDREW MORTON GARRETT v STEPHEN JAMES DUNCAN File number: VID 730 of 2014 Judge: BEACH J Date of judgment: 16 March 2015 Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal summary judgment – applicant and former spouse former bankrupts – applicant joint trustee of family trust – applicant sought order that surplus of former spouse’s estate be paid to him as joint trustee – deed of settlement between applicant and trustee of former spouse’s bankrupt estate – release clauses – covenant not to sue – complete defence – no sufficient doubt to warrant reconsideration – no substantial injustice if leave refused – application dismissed Legislation: Bankruptcy Act 1966 (Cth) s 179
Federal Court of Australia Act 1976 (Cth) ss 20A, 24(1A), 37AO, 37M, 37PFederal Court Rules 2011 (Cth) r 26.01
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Re CSR Ltd (2010) 183 FCR 358
Sali v SPC Ltd (1993) 116 ALR 625Date of hearing: 13 March 2015 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 40 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: The Respondent appeared via telephone
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 730 of 2014
BETWEEN: ANDREW MORTON GARRETT
ApplicantAND: STEPHEN JAMES DUNCAN
Respondent
JUDGE:
BEACH J
DATE OF ORDER:
16 MARCH 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The application for leave to appeal Tracey J's decision made on 21 November 2014 is dismissed.
2.The applicant is to pay the respondent's costs of and incidental to the application for leave to appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 730 of 2014
BETWEEN: ANDREW MORTON GARRETT
ApplicantAND: STEPHEN JAMES DUNCAN
Respondent
JUDGE:
BEACH J
DATE:
16 MARCH 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant seeks leave to appeal the orders and decision of Tracey J made on 21 November 2014 pursuant to which his Honour ordered, inter-alia, that the applicant's originating application be dismissed. The respondent opposes such leave to appeal.
In my opinion, for the reasons that follow, leave to appeal should be refused.
Before proceeding further, I should note one matter. Justice Pagone on 26 February 2015 made a vexatious litigant order under s 37AO of the Federal Court of Australia Act 1976 (Cth) (the Act) in proceeding VID 600 of 2014 (Garrett v Commissioner of Taxation [2015] FCA 117). The present application for leave to appeal was instituted before that order was made. The order in form does not expressly refer to continuing a proceeding already…
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- AGLC
- Garrett v Duncan [2015] FCA 255
- Case
- [2015] FCA 255
- Decision Date
CaseChat Overview and Summary
The court had to decide whether Garrett's application for leave to appeal the summary judgment was valid, considering the release clauses in the settlement deed, which constituted a complete defence. The court also had to determine if there was sufficient doubt about the summary judgment to warrant reconsideration, and if Garrett would suffer substantial injustice if the leave to appeal was refused.
The court found that the release clauses in the deed of settlement constituted a complete defence and that there was no sufficient doubt about the summary judgment to warrant reconsideration. The court also concluded that Garrett would not suffer substantial injustice if the leave to appeal was refused. Consequently, the application for leave to appeal was dismissed, and Garrett was ordered to pay the respondent's costs of and incidental to the application for leave to appeal.
Orders
Orders of the court
1. The application for leave to appeal Tracey J's decision made on 21 November 2014 is dismissed.
2. The applicant is to pay the respondent's costs of and incidental to the application for leave to appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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