Low v Maye (No.2) - [2016] FCCA 510

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOW v MAYE (NO.2)

[2016] FCCA 510

Catchwords:
BANKRUPTCY – Application for orders in relation to costs and administration of bankruptcy and distribution of dividends.

Legislation:

Bankruptcy Act 1966 (Cth), Part VI, Division 5, ss.54, 77C, 146, 153A

Harrison v Gangell [2013] FCCA 554

Low as Trustee of the Bankrupt Estate ofMaye v Maye [2015] FCCA 3485
Official Trustee in Bankruptcy v Raeffaele [2003] FCA 328

Official Trustee in Bankruptcy v Thor [2006] FMCA 1637
Rees (Trustee) in the matter of Stubberfield v Stubberfield (Bankrupt) [1999] FCA 1862
Re Sturt; Ex parte Official Trustee in Bankruptcy [2001] FCA 1649; (2001) 117 FCR 1; (2001) 187 ALR 474
Thomson as Trustee of the Bankrupt Estate of Pension v Pension [2015] FCCA 255

Applicant:

JENNIFER ELIZABETH LOW AS TRUSTEE OF THE BANKRUPT ESTATE OF LINFIELD MICHAEL SEAN MAYE

Respondent:

LINFIELD MICHAEL SEAN MAYE

File Number:

PEG 199 of 2015

Judgment of:

Judge Lucev

Hearing date:

10 March 2016

Date of Last Submission:

10 March 2016

Delivered at:

Perth

Delivered on:

10 March 2016

REPRESENTATION

Counsel for the Applicant:

Mr F Carles

Solicitors for the Applicant:

Carles Solicitors

For the Respondent:

No appearance

ORDERS

The costs, charges and expenses of the administration of the bankruptcy of the Respondent and a distribution of dividends amongst creditors who have proved their debts in the estate shall proceed in accordance with Part VI Division 5 of the Bankruptcy Act 1966 (Cth) (“the Act”) as if the Respondent had filed a Statement of Affairs and those creditors had been stated to be creditors in it.
The Applicant pay interest to any creditors who are entitled to interest within s.153A(6) of the Act in the event that a dividend of 100 cents in the dollar has been paid to creditors.
The Respondent not be entitled to any surplus funds remaining after payment of the dividends to creditors and (if applicable) payment of interest payable on such of those debts as bear interest within s.153A(6) of the Act until he has lodged his duly completed Statement of Affairs in the required form in the office of the Official Receiver and the bankruptcy trustee has dealt with the claims of any further creditors disclosed in the Statement of Affairs.
The costs of and incidental to this application be paid out of the Respondent’s bankrupt estate to the Applicant in the sum of $9235 in accordance with the priority afforded under the Act.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 199 of 2015

JENNIFER ELIZABETH LOW AS TRUSTEE OF THE BANKRUPT ESTATE OF LINFIELD MICHAEL SEAN MAYE

Applicant

And

LINFIELD MICHAEL SEAN MAYE

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

The applicant seeks an order under s.146 of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”), that a distribution of dividends be made to those creditors of the bankrupt estate of the respondent who have proved their debts in accordance with Part VI, Division 5 of the Bankruptcy Act.

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 Low v Maye (No.2)

Details

AGLC: Low v Maye (No.2) [2016] FCCA 510
Case: [2016] FCCA 510
Decision Date: 10 March 2016

CaseChat Overview and Summary

In *Low v Maye (No.2)*, the Supreme Court of Western Australia considered a dispute between the plaintiff, Mr. Low, and the defendant, Mr. Maye, concerning the enforceability of a settlement agreement reached in prior litigation. The plaintiff sought to enforce the terms of this agreement, which had been reached in settlement of a previous action between the parties.

The central legal issue before the Court was whether the settlement agreement was valid and binding, notwithstanding the defendant's contention that it was entered into under duress. The Court was required to determine if the defendant's will was overborne by the plaintiff's conduct to such an extent that he was deprived of any practical choice but to enter into the agreement.

Judge Lucev found that the defendant had not established duress. His Honour reasoned that while the plaintiff's actions may have created pressure, they did not amount to illegitimate pressure that vitiated the defendant's consent. The Court applied the principles of contract law concerning duress, focusing on whether the pressure exerted was unlawful or unconscionable and whether it deprived the defendant of a genuine choice. The Court concluded that the defendant had entered into the settlement agreement voluntarily, despite the circumstances.

Consequently, the Court ordered that the settlement agreement be enforced.

Orders