Holbrook v Symes - [2004] FMCA 798

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOLBROOK v SYMES

[2004] FMCA 798

BANKRUPTCY – Trustees fees – whether debtor estopped from proceedings with counterclaim against Trustee on grounds that issues of Trustee’s conduct and breaches of duty previously decided in an earlier application – whether counterclaim should be permanently stayed as abuse of process.

Bankruptcy Act 1966, ss.153B, 154

Symes v Holbrook (2003) FCA 96
Symes v Holbrook [2002] FMCA 26

Symes v Holbrook (No 2) [2004] FMCA 6
Symes v Holbrook (No 3) [2004] FMCA 71
Dissidomino v Butcher Paull & Calder [2004]WASC 122 (4 June 2004)
State Bank of New South Wales v Stenhouse Ltd (1997) Aust Tort Reports 81-423
Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198
Borck v Williamson (1994) 49 FCR 16
Rogers v R (1994) 181 CLR 251
Walton v Gardiner (1993) 177 CLR 378
Jago v District Court (NSW) (1989) 168 CLR 23

Applicant:

KIM DAVID HOLBROOK

Respondent:

FREDERICK KEITH SYMES

File No:

PEG 31 of 2004

Delivered on:

12 November 2004

Delivered at:

Perth

Hearing Date:

26 August 2004

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicant:

Mr A.F. Carles

Solicitors for the Applicant:

Carles Solicitors

Counsel for the Respondent:

Mr A.O. Karstaedt

Solicitors for the Respondent:

Leask & Co

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG31 of 2004

KIM DAVID HOLBROOK

Applicant

and

FREDERICK KEITH SYMES

Respondent

REASONS FOR JUDGMENT

In this matter orders were made by the registrar on 19 July 2004 that by consent the following issues be tried as preliminary issues:
(a)whether the respondent is estopped from proceeding with his counterclaim against the applicant on the grounds that the issues of the applicant’s alleged conduct and breaches of duty raised therein have previously been decided by this court in proceedings WZ86 of 2001 between the same parties, or alternatively, should have been raised by the current respondent in those proceedings;
(b)whether the respondent’s counterclaim should be permanently stayed as an abuse of process on the grounds set out above;
(c)further or alternatively, whether the respondent’s points of defence and counterclaim dated 5 July 2004 be struck out in their entirety.
Although the minute of orders made on 19 July 2004 purports to set out the scope of the preliminary issue, it is noted that in the applicant’s Amended Outline of Submissions on the preliminary issue filed on 11 August 2004 pursuant to orders made by this Court on 29 July 2004 the applicant therein concedes that an issue estoppel would not arise but maintains a claim of abuse of process in relation to the respondent’s counterclaim.
By way of background, it is noted the applicant’s claim is payment of the sum of $48,022.36 as costs, charges and expenses of the applicant as controlling trustee and trustee of the bankrupt estate of the respondent. The amount claimed comprises controlling trustee’s fees and disbursements and trustee’s fees and disbursements totalling $37,664.98 and legal fees of $8250.
The respondent denies liability for the claims and…

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 Holbrook v Symes

Details

AGLC: Holbrook v Symes [2004] FMCA 798
Case: [2004] FMCA 798
Decision Date: 12 November 2004

CaseChat Overview and Summary

The matter of Holbrook v Symes was heard by McInnis FM in the Federal Magistrates Court of Australia. The applicant, Kim David Holbrook, sought payment of $48,022.36 in costs, charges, and expenses as the controlling trustee and trustee of the bankrupt estate of the respondent, Frederick Keith Symes. Symes denied liability for the claims and counterclaimed for damages arising from alleged breaches of contractual, statutory, and common law duties by Holbrook. The court was required to decide whether Symes was estopped from proceeding with his counterclaim against Holbrook on the grounds that the issues of Holbrook's alleged conduct and breaches of duty had previously been decided in an earlier application, and whether Symes' counterclaim should be permanently stayed as an abuse of process.

The court found that Symes was not estopped from proceeding with his counterclaim, as the issues of Holbrook's conduct and advice had not been fully resolved in the earlier proceedings. However, the court found that Symes' counterclaim was an abuse of process, as it sought to re-agitate issues of Holbrook's alleged conduct and claimed breach of duty that had already been decided by the court in the earlier proceedings. The court held that it would be oppressive and unfair to Holbrook to entertain the counterclaim, and that the counterclaim should be permanently stayed as an abuse of process, with Symes' points of defence and counterclaim dated 5 July 2004 to be struck out in their entirety. The court ordered that the assessment of the quantum of Holbrook's claim should be a matter for further mediation subject to the submissions made by the parties arising out of this judgment.

Orders