McNamee v McNamee - [2024] NTSC 96

CITATION:McNamee & Anor v McNamee & Anor [2024] NTSC 96
PARTIES:CLINTON BLAKE MCNAMEE (AS LITIGATION GUARDIAN FOR LORNA JENNIE PASCOE)
And

TIARNI MCNAMEE (AS LITIGATION GUARDIAN FOR LORNA JENNIE PASCOE)

v

MITCHELL KENT MCNAMEE

and

MITCHELL MACKENZIE HERRETT (AS TRUSTEE OF THE BANKRUPT ESTATE OF MITCHELL KENT MCNAMEE)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2022-01009-SC and 2022-01010-SC
DELIVERED:  19 November 2024
HEARING DATE:  22 August 2024
JUDGMENT OF:  Luppino AsJ
CATCHWORDS:

Practice and Procedure – Application for dismissal of Counterclaim by Defendant for want of prosecution –Bankruptcy of Defendant subsequent to commencement of proceedings – Stay of proceedings by virtue of s 60(2) Bankruptcy Act 1966 (Cth) – Notice to Trustee in Bankruptcy pursuant to s 60(3) Bankruptcy Act 1966 (Cth) requiring the Trustee in Bankruptcy to elect to prosecute the Counterclaim – Requirements for a valid notice pursuant to s 60(3) of Bankruptcy Act 1966 (Cth) – Whether Trustee in Bankruptcy validly elected to prosecute the Counterclaim – Requirements for a valid election – Whether appropriate to dismiss the Counterclaim for want of prosecution in the event of a failure by the Trustee in Bankruptcy to elect to prosecute the Counterclaim – Dismissal for want of prosecution is in the discretion of the Court – Factors relevant to the exercise of the discretion.
Bankruptcy Act 1966 (Cth), ss 60(2), 60(3).
Guardianship of Adults Act 2016 (NT), s 20
Supreme Court Rules 1987 (NT), rr 4.07, 24.01, 24.02, 24.05(a), 53.
Aware Industries Ltd v Robinson (1997) 75 FCR 600.
Freeman v Joiner [2005] FCAFC 149.
Frigger v Rowe Bristol Lawyers Pty Ltd [2020] WASC 5.
Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 73 FLR 88.

Muir v Angeles 2020 NSWSC 1056.
Nugawela v Commissioner of Taxation [2018] FCA 1458.

Re Collins; Ex parte Official Trustee in Bankruptcy v Bracher (1986) 10 FCR 209.
Re Lofthouse (2001) 107 FCR 151.
REPRESENTATION:

Counsel:
Plaintiffs:R Sanders
First Defendant:  D McConnel SC
Second Defendant:  No appearance
Solicitors:
Plaintiffs:Ward Keller Lawyers
First Defendant:  Piper Grimster Jones
Second Defendant:   No Appearance
Judgment category classification:    B
Judgment ID Number:  Lup2406

Number of pages: 15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
McNamee & Anor v McNamee & Anor [2024] NTSC 96
No. 2022-01009-SC and 2022-01010-SC

BETWEEN:

CLINTON BLAKE MCNAMEE (AS LITIGATION GUARDIAN FOR LORNA JENNIE PASCOE)
First Plaintiff

And

TIARNI MCNAMEE (AS LITIGATION GUARDIAN FOR LORNA JENNIE PASCOE)

Second Plaintiff

v

MITCHELL KENT MCNAMEE

First Defendant

And

MITCHELL MACKENZIE HERRETT (AS TRUSTEE OF THE BANKRUPT ESTATE OF MITCHELL KENT MCNAMEE)

Second Defendant

CORAM: Luppino AsJ

REASONS

(Delivered 19 November 2024)

These two proceedings have been consolidated by order made on 7 October 2022. Both proceedings were commenced by Originating Motion filed on 19 April 2022 seeking orders for possession. In the case of file 2022-01009-SC, possession was sought in respect of a residential property (the Land). The relief sought in…

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 McNamee v McNamee

Details

AGLC: McNamee v McNamee [2024] NTSC 96
Case: [2024] NTSC 96
Decision Date: 19 November 2024

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, Clinton Blake McNamee and Tiarni McNamee, acting as litigation guardians for Lorna Jennie Pascoe, commenced proceedings against Mitchell Kent McNamee and Mitchell Mackenzie Herrett, the trustee of Mitchell Kent McNamee's bankrupt estate, seeking possession of a residential property and a motor vehicle. The First Defendant, Mitchell Kent McNamee, opposed the application for possession, alleging an agreement with Lorna Jennie Pascoe that entitled him to reside in the property for six years without cost. After the appeal was remitted to the Court, the First Defendant filed a Defence and Counterclaim, seeking over $420,000 plus additional costs and interest. The plaintiffs subsequently filed an application for the dismissal of the counterclaim for want of prosecution. The key issues were whether the notice given to the Second Defendant was valid and whether the Second Defendant's response constituted a valid election to prosecute the counterclaim.

The court found that the notice given to the Second Defendant was valid, as it contained sufficient information to alert the trustee to the need to make an election. The court also determined that the Second Defendant's response, which stated that the trustee did not abandon any claims, was a valid election to prosecute the counterclaim. The court rejected the plaintiffs' argument that the Second Defendant's intention to review the matter rendered the election ineffective. Consequently, the counterclaims were not deemed abandoned, and the court directed the Second Defendant to prosecute the counterclaims promptly.

The court will hear the parties on ancillary orders, such as the filing of a properly pleaded version of the Defence and Counterclaim, and on the question of costs. The court did not dismiss the counterclaims for want of prosecution, as the Second Defendant had made a valid election to prosecute the counterclaims.

Orders