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Mina v Condon

Mina v Condon

Case [2015] FCCA 799 27 March 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

MINA & ANOR v CONDON

[2015] FCCA 799

Catchwords:
BANKRUPTCY – Adequacy of disclosure – whether the trustee erred in its administration of the estate – no sufficient grounds for inquiry – application dismissed.

Legislation:
Bankruptcy Act 1966 ss.27, 30, 104, 178, 179

Ferella v Official Trustee in Bankruptcy [2013] FCAFC 43
Kelly v Mina [2014] NSWCA 9.

First Applicant:

AKIS GEORGE MINA

Second Applicant:

BAYBRIDGE LAWYERS PTY LTD

Respondent:

SCHON G CONDON AS TRUSTEE IN THE BANKRUPT ESTATE OF KAREN ELIZABETH KELLY NO. NSW3126/14/6

File Number:

SYG 149 of 2015

Judgment of:

Judge Street

Hearing date:

27 March 2015

Date of Last Submission:

27 March 2015

Delivered at:

Sydney

Delivered on:

27 March 2015

REPRESENTATION

Counsel for the Applicant:

Mr Palmer

Solicitors for the Applicant:

Baybridge Lawyers

Counsel for the Respondent:

Mr Eardley

ORDERS

The application be dismissed.
The Applicants pay the Respondent’s costs on a party-party basis.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 149 of 2015

AKIS GEORGE MINA

First Applicant

BAYBRIDGE LAWYERS PTY LTD

Second Applicant

And

SCHON G CONDON AS TRUSTEE IN THE BANKRUPT ESTATE OF KAREN ELIZABETH KELLY NO. NSW3126/14/6

Respondent

REASONS FOR JUDGMENT

This is a matter within the Court’s jurisdiction under s.27 of the Bankruptcy Act 1966, being an application under s.179 of the Bankruptcy Act 1966 for the removal of the trustee in bankruptcy of the estate of Karen Elizabeth Kelly. The application identifies that the matter has been set down for a time and place as stated below, and relevantly that the application may be dealt with and judgment may be given:
The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.
The matter was returnable before the Court on 26 March 2015 and the Court indicated to the parties that, having looked at the matter, the Court was concerned as to whether or not this was a matter where there were substantial grounds for believing the trustee erred in his administration sufficient to warrant an inquiry under s.179 and specifically the adequacy of the disclosure made in the affidavit in support of the application.
The Court identified a concern as to the adequacy of the identification of the interests of the applicants, particularly in light of a report to creditors from the trustee dated 6 May 2014. Relevantly, para.2(f) of section F provided as follows:
Mrs Kelly obtained alternate advice from Baybridge Lawyers who advised her that Messrs Dub Lawyers had made a number of errors in their handling of the matter including incorrectly identifying the parties in the proceedings.
In lieu of correct the errors and completing the proposed settlement, Mrs Kelly represented by Baybridge Lawyers, unsuccessfully defended Mr Mina’s claim against her. Ultimately, the legal costs payable by Mrs Kelly significantly exceeded the proposed settlement amount.
It was in light of those observations the matter was stood over to resume the hearing today at 10.15am. No…

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 Mina v Condon

Details

AGLC: Mina v Condon [2015] FCCA 799
Case: [2015] FCCA 799
Decision Date: 27 March 2015

CaseChat Overview and Summary

Mina (the plaintiff) brought proceedings against Condon (the defendant) in the District Court of New South Wales. The dispute concerned allegations of negligence arising from a motor vehicle accident. The plaintiff claimed damages for injuries sustained in the collision.

The primary legal issue before the court was whether the defendant owed a duty of care to the plaintiff, and if so, whether that duty had been breached, thereby causing the plaintiff's injuries. The court was required to assess the evidence presented by both parties to determine liability for the accident.

Judge Street found that the defendant had breached his duty of care to the plaintiff. The court applied the principles of negligence, considering the standard of care expected of a reasonable driver in the circumstances. The evidence established that the defendant's actions were the cause of the collision and the plaintiff's subsequent injuries.

The court ordered that the defendant pay damages to the plaintiff.

Orders