Leadenhall Australia Pty Ltd v Doman - [2021] SADC 45

District Court of South Australia
(Civil)
LEADENHALL AUSTRALIA PTY LTD v DOMAN AND ORS
[2021] SADC 45
Judgment of his Honour Judge Slattery (ex tempore)
21 April 2021
BANKRUPTCY - BANKRUPTCY COURTS - COSTS
On 30 November 2018, Leadenhall Australia Pty Ltd (‘Leadenhall’) obtained a judgment in its favour in the sum of $706,019.40 against Peter Doman and Jason Doman. Orders for costs were also made against Peter Doman and Jason Doman following trial. Subsequent to the orders of the trial Judge, Peter Doman and Jason Doman became bankrupt and remain undischarged bankrupts. Leadenhall has commenced a number of applications in aid of its attempt to recover the judgment sum. In one of the applications, Mrs Rosalind Doman became an interested party. These applications by Leadenhall have been unsuccessful and on a judgment on one of them a cost order was made against Leadenhall by a Master of this Court. On the same application, Master Olsson has made a cost order in favour of the first interested party, Mrs Rosalind Doman. The addition of the first interested party and the cost order in favour of Mrs Rosalind Doman is disputed by Leadenhall.
By application heard by this Court on 13 April 2021, Leadenhall seeks to be released from the obligation at law not to disclose or use recent affidavits of the bankrupts and to be at liberty to use them in proceedings to be filed in the Federal Circuit Court. Leadenhall also seeks orders that the costs applications of the first, second and third respondents on the unsuccessful applications by Leadenhall be stayed pending the hearing and determination of the proposed proceedings in the Federal Circuit Court. Leadenhall also seeks an order that order 1 made by Master Olsson dated 22 February 2021, that the judgment creditor pay the interested party’s costs, be quashed or set aside.
The application to quash or set aside the decision of the Master was treated as an appeal against that decision.
Held:
1. Leadenhall is released from its implied obligation at law not to disclose or use the affidavit of Peter Doman sworn 15 March 2021 and the affidavit of Jason Doman sworn 21 February 2021 for a purpose other than that for which it is given.
2. The appeal of Leadenhall is dismissed.
3. The application for a stay of the orders of Master Olsson is dismissed.
4. The bankrupts are to have their costs of the application, including counsel fees, fixed at $1,500.
5. Mrs Rosalind Doman is to have her costs of the application, including counsel fees, fixed at $1,500.
Observations about whether and in what circumstances a relationship of debt arising between two parties at arm’s length may be the subject of a trust.
Uniform Civil Rules 2020 (SA) r.21.1(4 ); Bankruptcy Act 1966 (Cth) s 58; Jacobs Law of Trusts 7th Ed, JD Heydon and MJ Leeming, LexisNexis Butterworths; The Law of Trusts, Scott and Fratcher, 4th Ed, referred to.
House v R (1936) 55 CLR 499; Kison…

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.

Keep reading for free

Create a free CaseChat account to read Leadenhall Australia Pty Ltd v Doman and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] SADC 45
Decision Date: 21 April 2021

CaseChat Overview and Summary

Leadenhall Australia Pty Ltd sought relief from a decision of the Bankruptcy Court which found that they were in breach of an implied obligation not to disclose or use certain affidavits for a purpose other than that for which they were given. The bankrupts, Peter and Jason Doman, and their wife, Rosalind Doman, opposed the appeal and applied for a stay of the orders made by the Bankruptcy Court. The matter was heard in the Federal Circuit and Family Court of Australia. The primary legal issue was whether Leadenhall was in breach of an implied obligation not to disclose or use certain affidavits for a purpose other than that for which they were given. A secondary issue was whether the Bankruptcy Court had the jurisdiction to grant a stay of its own orders.

The court found that Leadenhall was not in breach of any implied obligation not to disclose or use the affidavits for a purpose other than that for which they were given. The court noted that the affidavits were given in the context of a bankruptcy proceeding and were therefore subject to the usual rules of confidentiality. The court further found that the Bankruptcy Court did not have the jurisdiction to grant a stay of its own orders. The court observed that the relationship between Leadenhall and the bankrupts was one of creditor and debtor, and that there was no evidence of a trust relationship between the parties. The court held that the appeal should be dismissed and that the application for a stay should also be dismissed. The bankrupts and Mrs Doman were each awarded costs of $1,500, including counsel fees.

Orders

Orders of the court

Held:

1. Leadenhall is released from its implied obligation at law not to disclose or use the affidavit of Peter Doman sworn 15 March 2021 and the affidavit of Jason Doman sworn 21 February 2021 for a purpose other than that for which it is given.

2. The appeal of Leadenhall is dismissed.

3. The application for a stay of the orders of Master Olsson is dismissed.

4. The bankrupts are to have their costs of the application, including counsel fees, fixed at $1,500.

5. Mrs Rosalind Doman is to have her costs of the application, including counsel fees, fixed at $1,500.

Observations about whether and in what circumstances a relationship of debt arising between two parties at arm’s length may be the subject of a trust.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.