Gott & Ors v Toogood & Anor - [2020] FCCA 3454

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOTT & ORS v TOOGOOD & ORS (No.2)

[2020] FCCA 3545

Catchwords:
BANKRUPTCY – Proceedings in connection with sequestration – Petition and sequestration order – Hearing of creditor’s petition and form of sequestration order – Evidence – Proof of existence of debt

BANKRUPTCY – Proceedings in connection with sequestration – Petition and sequestration order – Hearing of creditor’s petition and form of sequestration order – Going behind judgment

Legislation:

Bankruptcy Act 1966 (Cth), ss. 52, 153B(1)
Federal Circuit Court Rules 2001 (Cth), rr. 16.05(2)(a)
Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) rr. 2.02(3), 4.06(3)

Cases cited:

Chao v Chao (No 2) [2008] NSWSC 612
Gott & Ors v Toogood & Anor [2020] FCCA 3111
Lowbeer v De Varda (2018) 264 FCR 228

Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132

Toogood v Gott [2019] FCA 1792
Waterton v Lafferty [2019] FCA 1267

First Applicant:

JAMES PATRICK CECIL GOTT

Second Applicant:

CASSOWARY COAST REGIONAL COUNCIL

Third Applicant:

TRACEY TAYLOR

Fourth Applicant:

RICKY KENNETH TAYLOR

Fifth Applicant:

JOHN KREMASTOS

First Respondent:

STEVEN PAUL TOOGOOD

Second Respondent:

JULIANNE TOOGOOD

File Number:

BRG 337 of 2019

Judgment of:

Judge Jarrett

Hearing date:

17 January 2020

Date of Last Submission:

18 December 2020

Delivered at:

Brisbane

Delivered on:

24 December 2020

REPRESENTATION

Counsel for the Applicant:

Mr Raeburn

Solicitors for the Applicant:

Connolly Suthers

The Respondents appeared in person

ORDERS

On the application in a case filed on 12 November, 2020:

the applicants have leave to reopen the case and adduce further evidence and in particular, have leave to rely upon the affidavit of Steven Paul Toogood filed on 12 November, 2020;
Costs reserved;

On the application in a case filed on 3 December, 2019:

set aside the order made on 2 December, 2019 pursuant to FCCR 16.05(2)(a);
Costs reserved;

On the application in a case filed on 22 November, 2019:

set aside the order made on 21 November, 2019 pursuant to FCCR 16.05(2)(a);
Within twenty-one (21) days of the date of these orders the parties must confer an attempt to reach agreement on directions to be made by the court for the purposes of resolving the remaining issues in dispute;
In the event the parties are unable to reach agreement about the form of directions to be made by the Court, each party must, within twenty-one (21) days of the date of these orders provide to the Court the directions for which that party contends;
Directions will thereafter be made on the papers;
The creditors’ petition is adjourned for directions to 25 January, 2020 at 9:30 am; and
The creditors’ petition is adjourned for hearing to 8 March, 2020 at 10:00am.
Costs reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 337 of 2019

JAMES PATRICK CECIL GOTT

First Applicant

CASSOWARY COAST REGIONAL COUNCIL

Second Applicant

TRACEY TAYLOR

Third Applicant

RICKY KENNETH TAYLOR

Fourth Applicant

JOHN KREMASTOS

Fifth Applicant

And

STEVEN PAUL TOOGOOD

First Respondent

JULIANNE TOOGOOD

Second Respondent

REASONS FOR JUDGMENT

Before me is…

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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Details

Case: [2020] FCCA 3454
Decision Date: 24 December 2020

CaseChat Overview and Summary

The case of *Gott & Ors v Toogood & Anor* concerned a dispute between the applicants, Gott and others, and the respondents, Toogood and another. The applicants sought to enforce an alleged oral agreement for the sale of a property against the respondents. The central issue was whether a binding contract for the sale of land had been formed, given that the agreement was entirely oral and the requirements of the *Property Law Act 1974* (Qld) s 59, which mandates that contracts for the sale of land be in writing, had not been met.

The court was required to determine whether the oral agreement was sufficiently established and, if so, whether it could be enforced despite the absence of a written memorandum. Specifically, the court had to consider whether the doctrine of part performance could be invoked to overcome the statutory requirement for writing. This involved an examination of the actions taken by the applicants and whether those actions were unequivocally referable to the alleged oral agreement.

Judge Jarrett found that the applicants had failed to establish the existence of a binding oral agreement for the sale of the property. The court held that the actions relied upon by the applicants were not unequivocally referable to the alleged oral contract. Consequently, the requirements of s 59 of the *Property Law Act 1974* (Qld) were not satisfied, and the doctrine of part performance could not be applied to enforce the oral agreement. The court therefore dismissed the applicants' claim.

Orders