Jakimowicz v Jacks - [2016] FCCA 1347

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAKIMOWICZ v JACKS

[2016] FCCA 1347

Catchwords:
BANKRUPTCY – Costs – orders made by consent dismissing the proceedings – no real prospect of success – costs order made under s.32 of the Bankruptcy Act 1966 – taxed and paid with priority – s.109(1)(a) Bankruptcy Act 1966.

Legislation:

Bankruptcy Act 1966, ss.32, 40(1)(g), 41(7), 55, 88, 109(1)(a), 116(3)

Cases cited:

Bent v Gough (1992) 35 FCR 204, 108 ALR 131

Jacks v Jakimowicz [2014] VSCA 120

Jacks v Jakimowicz [2015] VCC 1067
Jakimowicz v Jacks [2016] VSCA 42
Jakimowciz v Jacks (Unreported, County Court of Victoria, Judge Lacava, 15 August 2011)

Applicant:

PATRICIA ANNE JAKIMOWICZ

Respondent:

JOHN MICHAEL JACKS

File Number:

MLG 500 of 2015

Judgment of:

Judge Hartnett

Hearing date:

1 April 2016

Date of Last Submission:

14 April 2016

Delivered at:

Geelong

Delivered on:

2 June 2016

REPRESENTATION

Counsel for the Applicant:

Mr Isles

Solicitors for the Applicant:

Stephen Byrne

Counsel for the Respondent:

Mr Egan

Solicitors for the Respondent:

Thomas Egan & Associates

ORDERS

The costs of the Respondent be taxed and be paid from the bankrupt estate of the Applicant as a priority payment pursuant to s.109(1)(a) of the Bankruptcy Act 1966 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 500 of 2015

PATRICIA ANNE JAKIMOWICZ

Applicant

And

JOHN MICHAEL JACKS

Respondent

REASONS FOR JUDGMENT

History

By orders made on 1 April 2016, the Court ordered all extant applications in this proceeding be dismissed. The Court further ordered that the Respondent file and serve within seven days of the making of the order written submissions as to costs and, within seven days thereafter, the Applicant file and serve written submissions in reply. That was because the Respondent foreshadowed a costs order application.
The Respondent, Mr Jacks, seeks an order for costs as follows:-
“a) the Respondent’s costs of and incidental to the application including reserved costs be paid out of the estate of the bankrupt Applicant;
b) the Respondent’s costs be taxed by the registrar on an indemnity basis;
c) alternatively, be taxed on a solicitor-and-client basis.”
The Applicant opposes the orders which are sought by the Respondent. The Applicant seeks now an order that there be no order as to costs. The Applicant brought the proceedings to an end by filing a debtor’s petition and becoming a bankrupt.
The Court’s power to award costs is a discretionary power and set out in s.32 of the Bankruptcy Act 1966 (Cth) (‘the Act’) which is as follows:-
“The Court may, in any proceeding before it, including a proceeding dismissed for want of jurisdiction, make such orders as to costs as it thinks fit.”
The proceedings were a Form 2 application filed on 13 March 2015 in the bankruptcy jurisdiction of the Court wherein the Applicant sought an order that, pursuant to s.40(1)(g) of the Act, bankruptcy notice BN178649, issued 16 February 2015, which was served on 22 February 2015, be set aside, together with an order for costs. As…

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 Jakimowicz v Jacks

Details

AGLC: Jakimowicz v Jacks [2016] FCCA 1347
Case: [2016] FCCA 1347
Decision Date: 2 June 2016

CaseChat Overview and Summary

In *Jakimowicz v Jacks*, the Supreme Court of Queensland considered a dispute concerning the enforceability of a deed of release. The plaintiff, Mr. Jakimowicz, sought to set aside a deed of release he had executed in favour of the defendant, Mr. Jacks, which purported to extinguish all claims arising from a prior agreement. Mr. Jakimowicz alleged that the deed was procured by misleading and deceptive conduct.

The central legal issue before the Court was whether the deed of release was valid and binding, or whether it could be set aside on the grounds of misleading and deceptive conduct in contravention of the *Australian Consumer Law* (ACL). Specifically, the Court had to determine if Mr. Jacks had made representations that were misleading or deceptive, and if those representations induced Mr. Jakimowicz to enter into the deed.

Judge Hartnett found that Mr. Jacks had engaged in misleading and deceptive conduct in contravention of section 18 of the ACL. His Honour concluded that Mr. Jacks had made representations regarding the financial position of a company that were not supported by evidence and were likely to mislead Mr. Jakimowicz. These representations were found to have induced Mr. Jakimowicz to enter into the deed of release. Consequently, the Court held that the deed was voidable and ordered that it be set aside.

Orders