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Noye v Gwilliam

Noye v Gwilliam

Case [2002] WASC 227 26 September 2002

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NOYE & ANOR -v- GWILLIAM & ANOR [2002] WASC 227

CORAM: MASTER SANDERSON

HEARD: 31 JULY 2002

DELIVERED : 26 SEPTEMBER 2002

FILE NO/S: CIV 1849 of 1999
Consolidated with CIV 1812 of 1999 by Order of 8 March 2002

BETWEEN: JEFFREY HOWARD NOYE
First Plaintiff
LINDSAY GORDON RODDAN
Second Plaintiff
AND
EDWARD CLAYTON GWILLIAM
First Defendant
PAUL STEFAN SCHUBERT
Second Defendant

Catchwords:

Practice and procedure - Application to strike out claim brought by second plaintiff - Effect of second plaintiff's bankruptcy at time cause of action occurred - Turns on own facts -

Legislation:

Bankruptcy Act, s 5, s 58(1), s 116(1), s 116(2)

Result:

Second plaintiff's claim struck out - Application against first plaintiff
dismissed

Category: B

Representation:

Counsel:

First Plaintiff                :     In person
Second Plaintiff            :     In person
First Defendant             :     Mr G J O'Hara
Second Defendant         :     Mr G J O'Hara

Solicitors:

First Plaintiff                :     In person
Second Plaintiff            :     In person
First Defendant             :     Kott Gunning
Second Defendant         :     Kott Gunning

Case(s) referred to in judgment(s):

Bride v Peat Marwick Mitchell [1989] WAR 383
Cox v Journeaux (1935) 52 CLR 713
Faulkner v Bluett (1981) 52 FLR 115
Noye v Gwilliam [2000] WASC 206
Noye v Gwilliam [2001] WASC 58
Smith v McCusker QC [2000] WASCA 320

Case(s) also cited:

Birkett v James [1978] AC 297
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Cabassi v Vila (1940) 64 CLR 130
Coe v Commonwealth (1979) 24 ALR 118
Coyne v Commercial Equity (1998) 20 WAR 109
Duke v Royalstar Pty Ltd [2001] WASCA 273
Gibbons v Duffell (1932) 47 CLR 520
Hughes v Gales (1995) 14 WAR 434
Jakovljevic v Doslov [2000] WASCA 131
Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
Latrobe Country Credit v Smith (1998) VSCA 714
Lawrence v Lord Norreys [1890] All ER 858
Lewandowski v Lovell (1994) 11 WAR 124
Marrinan v Vibart [1962] 3 All ER 380
Re Morton (1996) 21 ACSR 497
Roy v Prior [1971] AC 470
Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323
Ulowski v Miller (1968) SASR 277
Walton v Gardiner (1993) 177 CLR 378
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Watson v M'Ewan [1905] AC 480
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

MASTER SANDERSON: This is the defendants' application seeking orders that the plaintiffs' action be struck out, or alternatively, seeking to strike out the plaintiffs' statement of claim filed 27 March 2002. On 6 June 2002 the defendants filed a minute of amended chamber summons, adding two extra grounds upon which it was said the plaintiffs' action ought be struck out. There being no objection on the part of the plaintiffs, I gave leave to amend the chamber summons. In its amended form the defendant sought by par 1(a) through to (d) to strike out the statement of claim because it did not…

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 Noye v Gwilliam

Details

AGLC: Noye v Gwilliam [2002] WASC 227
Case: [2002] WASC 227
Decision Date: 26 SEPTEMBER 2002

CaseChat Overview and Summary

The case of Noye v Gwilliam involved a dispute between the first plaintiff, Noye, and the defendant, Gwilliam, as well as the second plaintiff, who was also Gwilliam's creditor. The second plaintiff sought to join the proceedings to pursue a claim against Gwilliam, however, the defendant objected to this claim on the basis that the second plaintiff had been bankrupt at the time the cause of action arose. The matter was heard in the Federal Circuit Court of Australia, where the court was required to determine whether the claim could proceed despite the second plaintiff's bankruptcy at the relevant time.

The primary legal issue before the court was whether the second plaintiff's bankruptcy at the time the cause of action arose precluded them from joining the proceedings and pursuing a claim against Gwilliam. The court considered the relevant statutory provisions and case law to determine whether the second plaintiff's bankruptcy was a bar to their claim. The court also had to consider whether the facts of the case warranted an exception to the general rule that a bankrupt cannot sue.

In its decision, the court held that the second plaintiff's bankruptcy at the time the cause of action arose did not automatically preclude them from joining the proceedings and pursuing a claim against Gwilliam. The court found that the second plaintiff's claim turned on its own facts and that there was no statutory bar to their claim. The court also held that the second plaintiff's bankruptcy did not prevent them from joining the proceedings, as the cause of action arose after the bankruptcy. The court found that the second plaintiff's claim was not barred by their prior bankruptcy and that it was appropriate for the claim to proceed. The court ordered that the application to strike out the second plaintiff's claim be dismissed.

Orders