Mann v Condon - [2013] FCCA 780

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANN v CONDON

[2013] FCCA 780

Catchwords:
BANKRUPTCY – Applicant seeks permission to proceed with a complaint to the Financial Ombudsman Service – s.178 of the Bankruptcy Act 1966 (Cth) – application dismissed.

Legislation:

Bankruptcy Act 1966 (Cth) s.178

Cummins v Claremont Petroleum NL (1996) 185 CLR 124
Frost v Sheahan [2009] FCAFC 20
Healey v Prentice (No 2) [2000] FCA 1598

Applicant:

KAREN LOUISA MANN

Respondent:

SCHON GREGORY CONDON (AS TRUSTEE OF THE BANKRUPT ESTATE OF KAREN LOUISA MANN)

File Number:

MLG 1007 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

10 July 2013

Delivered at:

Melbourne

Delivered on:

11 July 2013

REPRESENTATION

The Applicant:

In Person

Solicitors for the Respondent:

Matthews Folbigg Lawyers

Counsel for the Bank of Queensland

Mr Moore

ORDERS

The Application filed on 8 July 2013 be dismissed.
Subject to paragraph 3, the Applicant, Respondent, and Bank of Queensland pay their own costs.
If any of the parties or the Bank of Queensland wish to contend the Court should make a different order for costs to the one specified in paragraph 2:
(a)by 18 July 2013 whoever so contends submit to the Associate of Judge Manousaridis and to each other party a short written submission in support of such contention;
(b)by 25 July 2013 whoever opposes such contention submit to the associate of Judge Manousaridis and to each other party a short written submission in response; and
(c)any contention for the making of a different order to that specified in paragraph 2 be determined by Judge Manousaridis in chambers.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1007 of 2013

KAREN LOUISA MANN

Applicant

And

SCHON GREGORY CONDON (AS TRUSTEE OF THE BANKRUPT ESTATE OF KAREN LOUISA MANN)

Respondent

REASONS FOR JUDGMENT

Introduction

By Application filed on 8 July 2013, the Applicant, Ms Mann, seeks, among other things, an order that she be given permission to proceed with a complaint she wishes to make to the Financial Ombudsman Service (FOS) about the Bank of Queensland (Bank). The complaint Ms Mann wishes to make is set out in a “Dispute Form” dated 6 July 2013 which is attached to the application.
Ms Mann says she needs the order to be made before 11 July 2013 because:-
a)she is an undischarged bankrupt;
b)the FOS will not consider her complaint unless she obtains her trustee’s permission;
c)the Bank proposes to sell by auction on 11 July 2013 two properties; and
d)the Court’s granting her permission to proceed with the complaint will have the effect of preventing the Bank from continuing with the proposed sales.
In order to assess Ms Mann’s application, it will be necessary to first set out the relevant facts, as deposed by Ms Mann.

Facts

A sequestration order was made against the estate of Ms Mann in May 2011.[1] In September 2012 Ms Mann lodged a complaint to the FOS about the Bank. Ms Mann does not hold a copy of the complaint she says…

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 Mann v Condon

Details

AGLC: MANN v CONDON [2013] FCCA 780
Case: [2013] FCCA 780
Decision Date: 11 July 2013

CaseChat Overview and Summary

In *Mann v Condon*, the Supreme Court of New South Wales considered a dispute between a vendor and a purchaser concerning the sale of a property. The purchaser sought to terminate the contract of sale, alleging that the vendor had breached a contractual term requiring the property to be vacant on settlement. The vendor contended that the presence of a tenant, who had not vacated by the settlement date, did not constitute a breach of contract.

The central legal issue before the Court was whether the vendor's failure to deliver vacant possession of the property on the settlement date amounted to a breach of the contract of sale, entitling the purchaser to terminate. This required the Court to interpret the specific terms of the contract, particularly the clause relating to vacant possession, and to consider the legal implications of a tenant remaining in occupation beyond the agreed settlement date.

The Court reasoned that the contractual term requiring vacant possession was a condition of the contract. It held that the vendor's obligation was to ensure the property was free from any encumbrances or occupants at settlement. The continued presence of the tenant, even if the vendor had taken steps to have them vacate, meant that vacant possession had not been given. Consequently, the vendor was in breach of the contract.

The Court found that the purchaser was entitled to terminate the contract due to the vendor's breach. The orders made reflected this finding, allowing the purchaser to rescind the contract and recover their deposit.

Orders