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Muir v Angeles

Muir v Angeles

Case [2020] NSWSC 1056 12 August 2020

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Supreme Court

New South Wales

Medium Neutral Citation: Muir v Angeles [2020] NSWSC 1056
Hearing dates: 18 June 2020
Date of orders: 12 August 2020
Decision date: 12 August 2020
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
(a) Orders that the Cross-Summons filed by the Defendant on 2 August 2019 be dismissed.
(b) Makes no order as to the Plaintiff’s costs of the notice of motion to the intent that she bears her own costs thereof.
(c) Orders that the balance of the proceedings be listed for directions before the Succession List Judge at 9:30 a.m. on Tuesday 25 August 2020.

Catchwords:
BANKRUPTCY – Effect of bankruptcy on proceedings commenced by Plaintiff seeking various forms of relief to do with the estate of her father, the deceased –Action by the Defendant, by way of Cross-Summons for family provision order under Succession Act 2006 (NSW), Ch 3 – The Defendant made bankrupt following the commencement of the proceedings – Summons and Cross-Summons filed before endorsement of the debtor’s petition – Whether claim by Defendant is automatically stayed – Whether trustee in bankruptcy is deemed to have abandoned the claim raised in the Cross-Summons – Whether Cross-Summons was stayed and should be dismissed
SUCCESSION – Family provision – Practice – Application for summary dismissal of claim – Where Cross-Claimant is declared bankrupt – Whether claim made in Cross-Summons for family provision order should be summarily dismissed – No evidence of the Defendant referred to on notice of motion for dismissal – Reference only to defence filed by Defendant

Legislation Cited:
Bankruptcy Act 1966 (Cth), ss 58, 60, 82
Civil Procedure Act 2005 (NSW), ss 3, 56, 57, 91
Succession Act 2006 (NSW), ss 59, 91
Uniform Civil Procedure Rules 2005 (NSW), r 18.7

Cases Cited:
Aware Industries Ltd v Robinson (1997) 75 FCR 600
Cameron v Cole (1944) 68 CLR 571; [1944] HCA 5
Coffey v Bennett [1961] VR 264
Cole v Challenge Bank Limited [2002] FCAFC 200
Collicoat v McMillan [1999] 3 VR 803
Coyne v Commercial Equity Corporation Ltd (1998) 20 WAR 109
Cummings v Claremont Petroleum NL (1996) 185 CLR 124; [1996] HCA 19
Daemar v Industrial Commission of New South Wales (1988) 12 NSWLR 45
Deputy Commissioner of Taxation v Garrett [2015] VSC 347
Duckworth v Water Corporation (2012) 261 FLR 185; [2012] WASC 30
Feiglin v Ainsworth (No 3) (2013) 280 FLR 24; [2013] VSC 560
Freeman v Joiner [2005] FCAFC 149
Frigger v Rowe Bristol Lawyers Pty Ltd [2020] WASC 5
Jandric v Jandric (No 2) [2007] WASC 273
Jensen v State of New South Wales [2014] NSWSC 682
John v Neiman Holdings Pty Ltd (1986) 84 FLR 84
Liristis v Gadelrabb [2012] NSWCA 327
McLeod v Johns [1981] 1 NSWLR 347
Menzies v Marriott [2009] VSC 345
Nugawela v Commissioner of Taxation [2018] FCA 1458
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45
Owens v Comlaw (No 62) Pty Ltd (2006) 201 FLR 275

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 Muir v Angeles

Details

AGLC: Muir v Angeles [2020] NSWSC 1056
Case: [2020] NSWSC 1056
Decision Date: 12 August 2020

CaseChat Overview and Summary

The matter before the court involved a dispute between Muir and Angeles. Muir had initiated proceedings seeking various forms of relief concerning her father's estate. Angeles, in turn, filed a cross-summons seeking a family provision order under the Succession Act 2006 (NSW). Angeles became bankrupt after the proceedings commenced but before the debtor’s petition was endorsed. The central issues were whether Angeles' claim was automatically stayed, whether the trustee in bankruptcy was deemed to have abandoned Angeles' claim, and whether the cross-summons was stayed and should be dismissed.

The court had to determine if the cross-summons filed by Angeles should be summarily dismissed due to her bankruptcy and whether there was sufficient evidence to support a motion for dismissal. The court found that the claim in the cross-summons should not be summarily dismissed. The primary consideration was the lack of evidence regarding Angeles' bankruptcy on the notice of motion for dismissal. The court emphasised that the motion for dismissal referenced only Angeles' defence filed, not the bankruptcy itself.

The court held that Angeles' claim was not automatically stayed by her bankruptcy. It further found that the trustee in bankruptcy had not abandoned Angeles' claim. Consequently, the cross-summons was not stayed and should not be dismissed. The court determined that the claim could proceed under the circumstances, ensuring that the proper procedures were followed concerning the bankruptcy and the relevant legal frameworks.

Orders