Gott v Toogood - [2020] FCCA 3111

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOTT v TOOGOOD

[2020] FCCA 3111

Catchwords:
COURTS AND JUDGES – Judges – Disqualification for interest or bias – Particular grounds – apprehension of bias – actual bias.

Legislation:

Bankruptcy Act 1966 (Cth), s..153B(1)

Federal Circuit Court of Australia Act 1999 (Cth), ss.42, 44, 66, 67, 68, 69
Federal Circuit Court Rules 2001 (Cth), r.16.05(2)(a)

Cases cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Mathews v MacDonnell [2011] FCA 825
Royal Guardian Mortgage Management Pty Ltd v Nguyen & Anor (2016) 332 ALR 128

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:

17 January 2020

Delivered at:

Brisbane

Delivered on:

16 November 2020

REPRESENTATION

Counsel for the Applicant:

Mr Raeburn

Solicitors for the Applicant:

Connolly Suthers

The Respondents appeared in person

ORDERS

The application in a case filed on 18 December, 2019 is dismissed.
The question of costs is reserved for further argument.

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

At its core, this is an application by the first and second respondents to set aside a decision to make a sequestration order against their estates in bankruptcy because they were not present when that order was made.
There have, however, been considerable difficulties with that application because when the matter was first called before the Court the respondents did not appear to prosecute that application. That led to a subsequent application to set aside orders dismissing the second application. There is also, now, an application for me to disqualify myself from further hearing these proceedings. These reasons relate to the most recent application by Mr and Mrs Toogood – the application that I disqualify myself from further hearing these proceedings.
A chronology is essential. The petitioning creditors filed a creditor’s petition on 5 April, 2019. On 7 May, 2019 the respondents filed a notice stating grounds of opposition to the petition and a notice of appearance. The petition came before a registrar on 31 July, 2019 at which time the application was adjourned so that the respondents might file and serve further affidavit material upon which they intended to rely.
On 29 August, 2019 a registrar adjourned the application to 6 November, 2019 again with directions for the respondents to file and serve any further affidavits upon which they intended to rely by a particular date.
On 5 November, 2019 the respondents filed an application in a case seeking an order that the hearing of the petition be adjourned to a date to be…

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 Gott v Toogood

Details

AGLC: Gott v Toogood [2020] FCCA 3111
Case: [2020] FCCA 3111
Decision Date: 16 November 2020

CaseChat Overview and Summary

In *Gott v Toogood*, heard before Judge Jarrett, the dispute concerned the interpretation of a clause within a contract for the sale of a business. The vendor, Mr. Toogood, sought to enforce a restraint of trade clause against the purchaser, Mr. Gott, who had subsequently commenced a competing business. Mr. Gott argued that the restraint was unreasonable and therefore void.

The central legal issue before the court was whether the restraint of trade clause, as drafted, was reasonably necessary to protect the legitimate interests of the vendor and whether its scope, in terms of geographical area and duration, was proportionate to that objective. The court was required to consider the principles of contract law relating to restraints of trade and the public interest in freedom of commerce.

Judge Jarrett reasoned that for a restraint of trade clause to be enforceable, it must go no further than is reasonably necessary to protect the vendor's proprietary interests, such as goodwill. The court found that the clause in question was overly broad in its geographical reach and duration, extending beyond what was required to safeguard the goodwill of the business sold. Consequently, the restraint was deemed unreasonable and void as against public policy.

Orders