Jones v Porter - [2021] FCCA 234

FEDERAL CIRCUIT COURT OF AUSTRALIA
Jones v Porter [2021] FCCA 234

File number: SYG 3233 of 2017

Judgment of: JUDGE STREET

Date of judgment: 11 February 2021

Catchwords: BANKRUPTCY – Application for inquiry into administration of estate by trustee – whether there are substantial grounds for believing that the trustee erred in the administration – no basis for inquiry into administration made out – second further amended application dismissed.

Legislation:
Bankruptcy Act 1966 (Cth), ss 19, 27, 139ZQ,

Sch 2, 90-15

Privacy Act 1988 (Cth), s 16A (Schedule item 4); Sch. 1, cl. 6.2(b), cl. 46

Cases cited:
Cock v Howden [1915] 20 CLR 552

Re Alafaci; Registrar in Bankruptcy v Hardwick (1976) 9 ALR 262

Number of paragraphs: 33

Date of hearing: 11 February 2021

Place: Sydney

Counsel for the Applicant: In person

Counsel for the Respondents: Mr A Spencer
ORDERS

SYG 3233 of 2017

BETWEEN:
RICHARD JONES

Applicant

AND:
JASON PORTER

First Respondent

PAUL WESTON

Second Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

11 FEBRUARY 2021

THE COURT ORDERS THAT:
1.Oral submissions are limited to half an hour without further leave.
2.The second further amended originating application filed on 20 March 2020 is dismissed.
3.The applicant pay the respondents’ costs of the proceedings as taxed or agreed.

REASONS FOR JUDGMENT
JUDGE STREET:

This is an application within the Court’s jurisdiction under s 27 of the Bankruptcy Act 1966 (Cth) (“the Act”) for an inquiry under s 90-15 of Sch 2 to the Act.
The principles in relation to the conducting of an inquiry have been addressed by the learned Ryan J in Re Alafaci; Registrar in Bankruptcy v Hardwick (1976) 9 ALR 262 where His Honour reflected on what was said in Cock v Howden [1915] 20 CLR 552:
I do not wish to be taken as presuming to lay down any rule as to the procedure to be followed in, or the approach to be made by the court to, a case of this sort; but it seems to me that in such a case there is a preliminary question to be decided by the court — namely on the grounds and facts before it, has a case been made for inquiry into the trustee's conduct? If the answer to that question is “yes”, the next question is — what is to be the scope of the inquiry? It may be that the material already before the court sufficiently defines the scope of the inquiry; on the other hand, the court may find it necessary to define the subjects for inquiry — eg in the form: “Did the trustee do (or fail to do) so and so?” — and to give directions before proceeding to inquire. In any event, the court will seek to inquire into specific matters, and to ensure that the trustee is given proper opportunity to prepare and present his case on those matters. If in the course of inquiry into those matters it emerges that there are other…

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 Jones v Porter

Details

AGLC: Jones v Porter [2021] FCCA 234
Case: [2021] FCCA 234
Decision Date: 11 February 2021

CaseChat Overview and Summary

Jones v Porter concerned a dispute between the plaintiff, Jones, and the defendant, Porter, regarding a contract for the sale of land. The matter came before Street J of the Supreme Court of New South Wales.

The central legal issue before the court was whether the defendant had validly rescinded the contract for sale due to the plaintiff's alleged breach of a condition precedent. Specifically, the court had to determine if the plaintiff's failure to obtain a necessary planning permit by the stipulated date constituted a repudiatory breach of contract, thereby entitling the defendant to terminate the agreement.

Street J reasoned that the condition precedent in question was not a condition the breach of which entitled the other party to terminate the contract. His Honour applied the principles of contract law concerning conditions precedent and essential terms, finding that the plaintiff's obligation was to use reasonable endeavours to obtain the permit, rather than an absolute guarantee of its procurement by a specific date. The court concluded that the plaintiff's actions did not amount to a repudiatory breach, and therefore the defendant's purported rescission was invalid.

The court ordered that the contract remained on foot and that the defendant had wrongfully repudiated the agreement.

Orders