Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Morris Finance Ltd v Brown [2016] NSWCA 343 Hearing dates: 29 November 2016 Date of orders: 08 December 2016 Decision date: 08 December 2016 Before: Basten JA at [1]; Payne JA at [2]. Decision: (1) Dismiss the summons seeking leave to appeal for want of jurisdiction.
(2) Order that the applicant, Morris Finance Ltd, pay the third respondent, Mr Free’s, costs of the summons for leave to appeal and the motion as agreed or assessed.Catchwords: COURTS – jurisdiction – proceedings against bankrupt – appeal from separate question regarding leave to commence proceedings in the Equity Division – Bankruptcy Act 1966 (Cth) s 58 – whether appeal lay to Court of Appeal – whether prohibition on instituting and determining appeal other than in a federal court in s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) applied – whether appeal involved a matter for determination arising under the Bankruptcy Act – appeal dismissed Legislation Cited: Bankruptcy Act 1966 (Cth) ss 27, 58, 60
Commonwealth Constitution s 76
Judiciary Act 1903 (Cth) s 78B
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 7Cases Cited: Boensch v Pascoe [2016] NSWCA 191
Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd (2013) 86 NSWLR 392; [2013] NSWCA 392
CGU Insurance Limited v Blakeley [2016] HCA 2
Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211
Felton v Mulligan (1971) 124 CLR 367
Jakimowicz v Jacks [2016] VSCA 42
Mango Media Pty Ltd v Velingos [2008] NSWSC 202
Meriton Apartments Pty Ltd v Industrial Court of New South Wales (2008) 171 FCR 380; [2008] FCAFC 172
Moss v Eaglestone (2011) 83 NSWLR 476; [2011] NSWCA 404
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141
Scott v Bagshaw (2000) 99 FCR 573; [2000] FCA 816Texts Cited: Leeming M J, Authority to Decide, (2012, The Federation Press) Category: Principal judgment Parties: Morris Finance Ltd (applicant)
Neil Warren Brown (first respondent)
Caroline Elsie Brown (second respondent)
Stuart William Free, Trustee of the property of Neil Warren Brown, a bankrupt (third respondent)
Official Trustee in Bankruptcy, Trustee of the property of Caroline Elsie Brown, a bankrupt (fourth respondent)
Holiday Coast Credit Union Ltd (fifth defendant)Representation: Counsel:
Solicitors:
Mr S Webster (applicant)
Ms I J King (third respondent)
Smith Leonard Fahey Lawyers (applicant)
CLH Lawyers (third respondent)
File Number(s): 2016/146663 Decision under appeal
- Court or tribunal:
- Supreme Court of NSW
- Jurisdiction:
- Equity Division
- Citation:
- [2016] NSWSC 516
- Date of Decision:
- 15 April 2016
- Before:
- Darke J
- File Number(s):
- 2015/330173
Judgment
-
BASTEN JA: I agree with Payne JA.
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PAYNE JA: The applicant for leave, Morris Finance Ltd, was the lessor under a chattel lease of certain property. The first respondent, Mr Brown, was the lessee of that property under the lease. In addition to the promise to make payments under the lease, Mr Brown provided a charge…
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Details
- AGLC
- Morris Finance Ltd v Brown [2016] NSWCA 343
- Case
- [2016] NSWCA 343
- Decision Date
CaseChat Overview and Summary
Morris Finance Ltd appealed to the Court of Appeal of New South Wales against a decision of the Equity Division concerning leave to commence proceedings against a bankrupt. The dispute arose from an application by Morris Finance Ltd for leave under section 58 of the *Bankruptcy Act 1966* (Cth) to commence proceedings against Mr Brown, who was a bankrupt. The Equity Division had determined a separate question regarding the jurisdiction to grant such leave.
The Court of Appeal was required to determine whether an appeal lay to it from the decision of the Equity Division. Specifically, the court considered whether section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth), which prohibits the institution and determination of certain matters other than in a federal court, applied to the present appeal. The central question was whether the appeal involved a matter for determination arising under the *Bankruptcy Act*.
The Court of Appeal reasoned that section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act* applied to the appeal, as the underlying matter concerned the exercise of jurisdiction conferred by the *Bankruptcy Act*. Consequently, the Court of Appeal lacked jurisdiction to hear the appeal. The court held that the prohibition in section 7(5) meant that appeals from decisions made by state courts in the exercise of federal jurisdiction conferred by the *Bankruptcy Act* could only be heard by a federal court.
Accordingly, the summons seeking leave to appeal was dismissed for want of jurisdiction. Morris Finance Ltd was ordered to pay the costs of Mr Free, the third respondent, in relation to the summons for leave to appeal and the motion.
The Court of Appeal was required to determine whether an appeal lay to it from the decision of the Equity Division. Specifically, the court considered whether section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth), which prohibits the institution and determination of certain matters other than in a federal court, applied to the present appeal. The central question was whether the appeal involved a matter for determination arising under the *Bankruptcy Act*.
The Court of Appeal reasoned that section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act* applied to the appeal, as the underlying matter concerned the exercise of jurisdiction conferred by the *Bankruptcy Act*. Consequently, the Court of Appeal lacked jurisdiction to hear the appeal. The court held that the prohibition in section 7(5) meant that appeals from decisions made by state courts in the exercise of federal jurisdiction conferred by the *Bankruptcy Act* could only be heard by a federal court.
Accordingly, the summons seeking leave to appeal was dismissed for want of jurisdiction. Morris Finance Ltd was ordered to pay the costs of Mr Free, the third respondent, in relation to the summons for leave to appeal and the motion.
Orders
Orders of the court
(1) Dismiss the summons seeking leave to appeal for want of jurisdiction.
(2) Order that the applicant, Morris Finance Ltd, pay the third respondent, Mr Free’s, costs of the summons for leave to appeal and the motion as agreed or assessed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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