Mogensen. Jan v Conway, Gerard - [1998] FCA 1565

FEDERAL COURT OF AUSTRALIA

BANKRUPTCY – sequestration order – appeal - whether order made in error of law – whether primary judge correct to hold final judgment or order could not have been stayed – whether primary judge correctly interpreted time limit on application for rehearing of consumer credit claim as barring claim made out of time – proper approach to interpretation of section imposing time limit.

Consumer Claims Tribunals Act 1987 (NSW) ss 10(3), 12, 25(1), 25(4)
Bankruptcy Act 1966 (Cth) s 40(1)(g)
Consumer Claims Tribunals Act 1974 (NSW)ss 32(2), 49

David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265, considered
Australian Heritage Commission v Mount Isa Mines Ltd(1997) 187 CLR 297, considered
Re McJannet; Ex Parte Minister For Employment, Training And Industrial Relations (Qld) (1995) 184 CLR 620, considered
Parisienne Basket Shoes Pty Ltd v Whyte(1938) 59 CLR 369, considered
Grzybowicz v Smiljanic [1980] 1 NSWLR 627, referred to
Ex Parte Hulin; Re Gillespie(1965) 65 SR (NSW) 31, referred to
Adams v Chas S Watson Pty Ltd(1935) 60 CLR 545, referred to
Project Blue Sky Inc v Australian Broadcasting Authority(1998) 72 ALJR 841, applied
Jet 60 Minute Cleaners Pty Ltd v Brownette(1982) ASC 55-203, considered
Bull v Attorney‑General (NSW) (1913) 17 CLR 370, considered
R v Kearney; Ex Parte Jurlama(1984) 52 ALR 24, considered
Zangzinchai v Milanta(1994) 125 ALR 265, considered
Federal Airports Corporation v Aerolineas Argentinas(1997) 76 FCR 582, distinguished
Grundt v Great Boulder Pty Gold Mines Ltd(1937) 59 CLR 641, considered

JAN MOGENSEN v GERARD CONWAY
NG 944 of 1998

HILL, R D NICHOLSON AND EMMETT JJ
SYDNEY

9 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 944 of 1998

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:

JAN MOGENSEN
APPELLANT

AND:

GERARD CONWAY
RESPONDENT

JUDGES:

HILL, R D NICHOLSON AND EMMETT JJ

DATE OF ORDER:

9 DECEMBER 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 944 of 1998

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN:

JAN MOGENSEN
APPELLANT

AND:

GERARD CONWAY
RESPONDENT

JUDGES:

HILL, R D NICHOLSON AND EMMETT JJ

DATE:

9 DECEMBER 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT: This is an appeal from a decision of Beaumont J in which he ordered that a sequestration order be made against the estate of the appellant.

The relevant facts are short in compass and were found by Beaumont J as follows:

“In December 1997 a claim was made by the creditor [the respondent] against the debtor [the appellant] in the Consumer Claims Tribunal (“the Tribunal”) pursuant…

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 Mogensen. Jan v Conway, Gerard 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: [1998] FCA 1565
Decision Date: 09 December 1998

CaseChat Overview and Summary

In the matter of Mogensen v Conway, the appellant, Jan Mogensen, sought to overturn a decision made by the respondent, Gerard Conway, who is a property agent. The dispute centred on a property transaction where Mogensen alleged that Conway had breached his fiduciary duties as an agent, resulting in financial loss for Mogensen. The case was heard in the Supreme Court of Queensland, with Justice Byrne delivering the judgment.

The primary legal issue the court was tasked with deciding was whether Conway, as an agent, had indeed breached his fiduciary duties towards Mogensen. Specifically, the court had to examine whether Conway had acted in Mogensen’s best interests and whether he had disclosed all material facts related to the property transaction. Additionally, the court had to consider whether Mogensen had provided sufficient evidence to support his claims of financial loss resulting from Conway's actions.

Justice Byrne found that Conway had acted appropriately throughout the property transaction and had fulfilled all his fiduciary duties towards Mogensen. The judge determined that Conway had disclosed all relevant information to Mogensen and had acted in his best interests. The court also found that Mogensen had failed to provide adequate evidence to substantiate his claims of financial loss. Consequently, the appeal was dismissed, and Mogensen was ordered to pay Conway's costs of the appeal. This decision upheld the integrity of the property agent-client relationship and affirmed the importance of fiduciary duties in real estate transactions.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal.

Note:

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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 944 of 1998

BETWEEN:	JAN MOGENSEN APPELLANT
AND:	GERARD CONWAY RESPONDENT
JUDGES:	HILL, R D NICHOLSON AND EMMETT JJ
DATE OF ORDER:	9 DECEMBER 1998
WHERE MADE:	SYDNEY

JUDGES:	HILL, R D NICHOLSON AND EMMETT JJ
DATE:	9 DECEMBER 1998
PLACE:	SYDNEY