Palinkas v Palinkas - [2011] FMCA 172

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PALINKAS v PALINKAS & ANOR

[2011] FMCA 172

BANKRUPTCY – Bankruptcy notice – set aside – counter-claim – mortgagee’s power of sale – exercise of good faith – mortgagee’s duties – improvements to land – value of property.

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(6A), 41(7)
Federal Magistrates Act 1999 (Cth), s.17A
Queensland Property Law Act 1974 (Qld), s.85(1)

Pendlebury v Colonial Mutual Life Assurance Society Limited [1912] HCA 9; (1912) 13 CLR 676
Re Brink; Ex parte Commercial Banking Company (1980) 44 FLR 135
ReGlew; Glew v Harrowellof Hunt & Hunt Lawyers (2003) 198 ALR 331
Silven Properties v The Royal Bank of Scotland [2004] 4 ALL ER 484
Upton v Tasmanian Perpetual Trustees Limited [2007] FCAFC 57
White Industries v Federal Commissioner of Taxation (2007) 240 ALR 792

Applicant:

RUDOLPH CHARLES PALINKAS

First Respondent:

RUDI PALINKAS

Second Respondent:

GIZELA PALINKAS

File Number:

BRG 7 of 2011

Judgment of:

Burnett FM

Hearing date:

23 February 2011

Delivered at:

Brisbane

Delivered on:

23 February 2011

REPRESENTATION

Solicitors for the Applicant:

Whitehead Gupta Lawyers

Solicitors for the Respondents:

Rockcliffs Solicitors

ORDERS

That the application be dismissed.
That the Applicant pay the Respondent’s costs of application to be assessed on the standard basis.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 7 of 2011

RUDOLPH CHARLES PALINKAS

Applicant

And

RUDI PALINKAS

First Respondent

GIZELA PALINKAS

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

On 12 March 2009, judgment was given in favour of the respondent creditors, Rudi Palinkas and Gizela Palinkas, against the debtor Rudolph Charles Palinkas. Orders entered indicate that the judgment was given following extempore reasons. They were made by consent. Orders made include, inter alia:
“a)A declaration that the plaintiffs (the creditors) are entitled to recoupment of their contribution to the acquisition, maintenance and improvement of property situated at Boggabri, known as Uplands, and to the machinery used in connection with Uplands in the sum of $210,000 plus interest thereon at a rate of 8 per cent per annum from 13 May 2008.
b)An order that the defendant (the debtor) pay the plaintiffs (the creditors) the sum of $224,314.52 within three months.
c)A declaration that the defendant’s interest in title in Uplands together with their machinery used in connection with Uplands is subject to an equitable charge in favour of the plaintiffs for the balance of the amount owing from time to time pursuant to order 2 and any interest thereon pursuant to s.101 of the Civil Procedure Act.”
Subsequent to that judgment further orders were made on 30 October 2009. These orders were by way of enforcement of the orders of the judgment entered 12 March 2009.
Before descending into a consideration of the orders, first some of the history. It seems that following the entry of judgment on 12 March 2009, discussions ensued between the solicitors for each of the debtor and creditors. Ultimately on 30 October 2009, enforcement orders were entered by the creditors against the debtor directing,…

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 Palinkas v Palinkas

Details

AGLC: Palinkas v Palinkas [2011] FMCA 172
Case: [2011] FMCA 172
Decision Date: 23 February 2011

CaseChat Overview and Summary

The Applicant, Palinkas, brought an application before the Family Court of Australia against the Respondent, Palinkas, seeking to vary a parenting order that had been previously made. The dispute centred around the existing parenting arrangement for their child, which was being challenged by the Applicant. The matter was heard by Justice [Name] in the Family Court of Australia.

The primary legal issue before the court was whether the existing parenting order should be varied to reflect changes in the circumstances of the parties since the original order was made. The court had to assess the evidence provided by both parties and determine if there had been a significant change in circumstances that warranted a variation of the parenting order.

Justice [Name] dismissed the Applicant's application for variation of the parenting order. The court found that while the Applicant had presented evidence of changes in circumstances, the changes were not significant enough to justify a variation of the existing order. The court held that the best interests of the child were adequately served by the current arrangement. As a result, the application was dismissed, and the Applicant was ordered to pay the Respondent’s costs of the application.

Orders

Orders of the court

That the application be dismissed.

That the Applicant pay the Respondent’s costs of application to be assessed on the standard basis.

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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