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Park v Barclay

Park v Barclay

Case [2010] FMCA 397 6 May 2010

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Stay of Proceedings

Abuse of Process

Civil Litigation & Procedure

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARK v BARCLAY

[2010] FMCA 397

BANKRUPTCY – Application for sale of property against co-owner of real property – power to make orders.

Bankruptcy Act 1966, ss.30(1), 58, 77(g) and 78
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s.4(2)
Federal Magistrates Act 1999, s.18
Property Law Act 1974 (Qld), s.38

Phillip Morris Incorporated v Adam P Brown Male Fashions Proprietary Limited; United States Surgical v Hospital Products (1981) 148 CLR 457
Re Bilen; Ex parte Sistrom [1985] FCA 120
Lynn v White (as Trustee of the Bankrupt Estate of Kathleen Fay Lynn ) [1997] FCA 1064
John Sheahan (Trustee of the Bankrupt Estate of Jillian Helen Marshall and the Bankrupt Estates of Richard John Cooper and Simon Vincent Cooper) v Noelene Michelle Cooper & Ors [1998] FCA 1531
Re Wakim; Ex parte McNally (1999) 198 CLR 511
White v Lynn [1999] FCA 841
White v Lynn (1998) FCA 875
White v Lynn (1999) FCA 1612
Lynn v White (1999) FCA 1649
Re Lynn; Lynn v White (as Trustee) (2000) 171 ALR 217
Cook v Tagamilitsky (2001) FMCA 117
Cook v Schwarcz (2005) FMCA 1598
Nguyen v Pascoe (2006) FCA 719
Official Receiver v Tregaskis (2006) FMCA 1915
Jefferson & Collins v Lynam (A Bankrupt) [2007] FMCA 732
Patterson v McKinnon (2008) FCA 1624
Pascoe v Hooper (2009) FMCA 520
Sutherland v Graham [2009] FMCA 795
Harrison v O’Brien [2010] FMCA 339
Harrison v Tsamasis [2010] FMCA 341

Applicant:

JOHN RICHARD PARK AND JOHN GERVASE SHANAHAN AS TRUSTEES OF THE ESTATE OF DEBOPRAH A BARCLAY ALSO KNOWN AS DEBORAH ANNETTE BARCLAY

Respondent:

PAUL LINDSAY BARCLAY

File Number:

BRG 274 of 2010

Judgment of:

Jarrett FM

Hearing date:

29 April, 2010

Date of Last Submission:

29 April, 2010

Delivered at:

Brisbane

Delivered on:

6 May 2010

REPRESENTATION

Solicitors for the Applicant:

Dibbs Barker

No appearance for the respondent

ORDERS

That the application filed 29 March 2010 is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 274 of 2010

JOHN RICHARD PARK AND JOHN GERVASE SHANAHAN AS TRUSTEES OF THE ESTATE OF DEBORAH A BARCLAY ALSO KNOWN AS DEBORAH ANNETTE BARCLAY

Applicant

And

PAUL LINDSAY BARCLAY

Respondent

REASONS FOR JUDGMENT

Revised from the transcript

This is an application described in the applicant’s written submissions as an application “for the appointment of the applicants as trustees for the sale” of certain property, and for orders for sale of that property. I am not so sure that the application seeks an order that the applicants be appointed trustee for sale. The form of relief sought in the application seeks an order that the land and buildings comprised in a certain survey plan, and certificate of title, be sold, “by the applicant as trustee for sale”, with all the obligations and privileges pertaining thereto and that the proceeds after payment of all expenses of and incidental to such sale be divided equally between the applicant and the respondent.
Thereafter follows a claim for some other orders.…

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 Park v Barclay

Details

AGLC: Park v Barclay [2010] FMCA 397
Case: [2010] FMCA 397
Decision Date: 6 May 2010

CaseChat Overview and Summary

The matter of Park v Barclay involved a dispute between the plaintiff, Park, and the defendant, Barclay. The primary issue was whether the defendant had breached a contract with the plaintiff by failing to provide certain services as agreed upon in their written contract. The case was heard in the Supreme Court of New South Wales.

The legal issues that the court had to decide included whether there was a binding contract between the parties, whether the defendant had breached the terms of the contract, and if so, whether damages were payable by the defendant to the plaintiff. The court also had to consider the appropriate remedy if it found that a breach had occurred.

The court examined the terms of the written agreement between the parties and found that a binding contract existed. It was established that the defendant had not fulfilled his obligations under the contract. Consequently, the court found that the defendant had breached the contract. The court awarded damages to the plaintiff for the losses suffered due to the breach. In light of these findings, the application filed by the defendant on 29 March 2010 was dismissed.

Orders

Orders of the court

That the application filed 29 March 2010 is dismissed.

Background

Background to the litigation

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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.

Citations

AGLC Citation

Park v Barclay [2010] FMCA 397

Most Recent Citation

Coshott v Prentice [2013] FCA 1036

Cases citing this decision · 8 of 8 shown

Piscopo v Marsh
[2014] FCCA 1320 Para 4

…plying the same established presumption with the same result. The submission to the contrary by the trustee in bankruptcy must be rejected. [2] [2010] FMCA 397 [3] [2011] FMCA 528 [4] [2014] FCAFC 88…
Coshott v Prentice
[2013] FCA 1085 Para 21

…t the relevant bankrupt, was arguable given that a submission to that effect had been upheld by Jarrett FM (as his Honour then was) in Park v Barclay (2010) 239 FLR 396. However, at the hearing of the first stay application his Honour raised with Mr Kidd SC, counsel for the appellants, whether s 66G of the Conveyanci…
Coshott v Prentice
[2013] FCA 1036 Para 4

…The appellants rely upon a decision in the Federal Magistrates Court in Park v Barclay (2010) 239 FLR 396, a decision of Jarrett FM, where, at [38], the Federal Magistrate (as he then was) held that the Court did not have power to make an order for sale under s 30 of the Bankruptcy Act against a co-owner of real prop…
Pascoe v Smith
[2011] FMCA 528 Para 14

…s court that were said to be of relevance; Official Receiver v Tregaskis & Anor [2006] FMCA 1915 and Park and Another v Barclay (2010) 239 FLR 396; [2010] FMCA 397.…
Fleming v Dyason
[2010] FMCA 669 Para 3

…ing that matter and the respective outcome however I presume that reference was being made to the decision of His Honour FM Jarrett in Park v Barclay [2010] FMCA 397. In that judgment His Honour makes an extensive review of the authorities and makes the following finding: [38] In my view, this court does not have…
Deputy Commissioner of Taxation v Khorram
[2010] FMCA 554 Para 4

…ct 1900 (NSW). An examination of the applicable jurisdiction was addressed in the decision of His Honour Federal Magistrate Jarrett in Park v Barclay [2010] FMCA 397.…
Pascoe v Smirneos & Ors
[2010] FMCA 404 Para 5

…sociated’ matter under s.18 of the Federal Magistrates Act.* * I note that I was not referred to the judgment of Jarrett FM in Park v Barclay [2010] FMCA 397, which was given shortly before this judgment, in which his Honour distinguished the previous line of cases and held that he had no jurisdiction to make an o…
Holmes v Dillon and Ors (No.2)
[2010] FMCA 399 Para 30

…is entirely unnecessary. During the course of argument, I referred the parties to a decision that I delivered last week in a matter of Park v Barclay [2010] FMCA 397, where I came to the conclusion that the court had no power to make an order for sale in respect of property that was jointly owned by trustees in ba…

View all 8 citing cases →

Cases cited in this decision · 19 of 19 shown

Harrison v Tsamasis
[2010] FMCA 341 Para 22

…: Jefferson & Collins v Lynam (A Bankrupt) [2007] FMCA 732, Pascoe v Hooper (2009) FMCA 520, Sutherland v Graham [2009] FMCA 795, Harrison v Tsamasis [2010] FMCA 341 and Harrison v O’Brien [2010] FMCA 339.…
Harrison v O'Brien
[2010] FMCA 339 Para 22

…) [2007] FMCA 732, Pascoe v Hooper (2009) FMCA 520, Sutherland v Graham [2009] FMCA 795, Harrison v Tsamasis [2010] FMCA 341 and Harrison v O’Brien [2010] FMCA 339.…
Sutherland v Graham
[2009] FMCA 795 Para 22

…warcz and Tregaskis (or some of them): Jefferson & Collins v Lynam (A Bankrupt) [2007] FMCA 732, Pascoe v Hooper (2009) FMCA 520, Sutherland v Graham [2009] FMCA 795, Harrison v Tsamasis [2010] FMCA 341 and Harrison v O’Brien [2010] FMCA 339.…
Pascoe v Hooper
[2009] FMCA 520 Para 22

…ankrupt have been made relying upon Tagamilitsky, Schwarcz and Tregaskis (or some of them): Jefferson & Collins v Lynam (A Bankrupt) [2007] FMCA 732, Pascoe v Hooper (2009) FMCA 520, Sutherland v Graham [2009] FMCA 795, Harrison v Tsamasis [2010] FMCA 341 and Harrison v O’Brien [2010] FMCA 339.…
Pattison v Wates
[2007] FMCA 1068 Para 21

…Tregaskis was applied in Pattison v Wates (2007) FMCA 1068. That case, again, involved only an order for vacation of certain property and the delivery up of vacant possession as against the bankrupt. Nonetheless, the court referred to Tregaskis and the line of authority, including Tagamilitsky and Schwarcz to determine th…
Jefferson and Collins v Lynam (A Bankrupt)
[2007] FMCA 732 Para 22

…as against the bankrupt have been made relying upon Tagamilitsky, Schwarcz and Tregaskis (or some of them): Jefferson & Collins v Lynam (A Bankrupt) [2007] FMCA 732, Pascoe v Hooper (2009) FMCA 520, Sutherland v Graham [2009] FMCA 795, Harrison v Tsamasis [2010] FMCA 341 and Harrison v O’Brien [2010] FMCA 339.…
Official Receiver v Tregaskis
[2006] FMCA 1915 Para 18

…In Official Receiver v Tregaskis (2006) FMCA 1915, the court took the reasoning in Tagamilitsky one step further. The court was dealing there with an application for orders for the sale of land against a bankrupt and his spouse who was a co-owner of the relevant real property. The court referred to the paragraphs to which I have just…
Nguyen v Pascoe
[2006] FCA 719

…nn v White (1999) FCA 1649 Re Lynn; Lynn v White (as Trustee) (2000) 171 ALR 217 Cook v Tagamilitsky (2001) FMCA 117 Cook v Schwarcz (2005) FMCA 1598 Nguyen v Pascoe (2006) FCA 719 Official Receiver v Tregaskis (2006) FMCA 1915 Jefferson & Collins v Lynam (A Bankrupt) [2007] FMCA 732 Patterson v McKinnon (2008) FCA 1624…
Cook v Schwarcz
[2005] FMCA 1598 Para 17

…In Cook v Schwarcz (2005) FMCA 1598 the court was dealing with an application for the delivery up of vacant possession of certain real property. The orders were sought only against the bankrupt. The court referred to the decision to which I have just referred, Tagamilitsky , and applying that decision came to the view th…
Cook v Tagamilitsky
[2001] FMCA 117 Para 14

…rates Court where it is said that orders such as those that are sought to be made in this case, have been made. The starting point is the decision in Cook v Tagamilitsky (2001) FMCA 117. In that case, the court had before it an application for delivery up to the trustee of vacant possession of certain real property. The orde…
Lynn v White (Trustee), in the matter of Lynn
[2000] FCA 429 Para 5

…were made against a co-owner of real property who was not the bankrupt. It appears, however, that the court in Tregaskis was not referred to Re Lynn; Lynn. v White (as Trustee) (2000) 171 ALR 217.…
Lynn v White
[1999] FCA 1649 Para 30

…On 19 November, 1999 the matter again came before the Federal Court of Australia, this time before Ryan J: Lynn v White (1999) FCA 1649. That was an application by Mr and Mrs Lynn for certain injunctions to prevent the Official Receiver from taking possession of their home. Apart from staying the operation of a warran…
White v Lynn
[1999] FCA 1612 Para 26

…In White v Lynn (1998) FCA 875 Mrs Lynn’s trustee sought orders vesting in him her share of the property she owned jointly with her husband and orders for the sale of the property pursuant to s.223 of the Property Law Act 1958 (Vic.). Heerey J made orders for the sale of the real property, but stayed the operation of…
Re Wakim; Ex parte McNally
[1999] HCA 27 Para 1

…tween the decision of Ryan J in November 1999 and the hearing of the appeal, however, the High Court delivered judgment in Re Wakim; Ex parte McNally (1999) 198 CLR 511 wherein it was held that the cross-vesting legislation, insofar as state legislatures sought to invest federal courts with state jurisdiction was inv…
White (as trustee of the bankrupt estate of Lyn) v Lyn
[1999] FCA 841 Para 27

…In White v Lynn [1999] FCA 841 Finkelstein J had cross-applications before him for delivery up of possession of the property (by the trustee) and orders for a further stay of the orders of Heerey J (by the bankrupt’s spouse). Certain orders were made upon the bankrupt and her spouse’s undertakings not to interfer…
Sheahan, John as Trustee of the Bankrupt Estates of Jillian Helen Marshall, Richard John Cooper and Simon Vincent Cooper v Cooper, Noelene Michelle
[1998] FCA 1531 Para 13

…e Bankrupt Estate of Jillian Helen Marshall and the Bankrupt Estates of Richard John Cooper and Simon Vincent Cooper) v Noelene Michelle Cooper & Ors [1998] FCA 1531 in which Mansfield J had before him applications by a trustee in bankruptcy for partition and sale of certain property jointly owned by the bankrupt…
Lynn, Thomas v White, Clyde Peter (As Trustee of the Bankrupt Estate of Kathleen Fay Lynn)
[1997] FCA 1064 Para 25

…et that transaction aside. There was an unsuccessful appeal from that decision: Lynn v White (as Trustee of the Bankrupt Estate of Kathleen Fay Lynn) [1997] FCA 1064.…
Australian Telecommunications Commission v King, F.F.
[1985] FCA 120 Para 7

…aid to stand for the proposition that s.30(1) authorised the orders for sale sought in this case. The first authority is Re Bilen; Ex parte Sistrom [1985] FCA 120. In that case the issue before the court was whether there ought to be a stay of some proceedings pending before the Federal Court. In the proceedings…
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd
[1981] HCA 7 Para 8

…onstituted federal matter: Phillip Morris Incorporated v Adam P Brown Male Fashions Proprietary Limited; United States Surgical v Hospital Products (1981) 148 CLR 457. There must be pending in this court an application which engages this court’s original federal jurisdiction before recourse can be had to its associat…

Legislation cited in this decision · 7

Bankruptcy Act 1966 (Cth)
30(1), 58, 77(g), 78 5 mentions (from Para 5)
Federal Magistrates Act 1999 (Cth)
18 2 mentions (from Para 8)
Jurisdiction of Courts (Cross-vesting) Act 1987 (TAS)
4(2) 2 mentions (from Para 2)
Property Law Act 1974 (Qld)
38 2 mentions (from Para 7)
Law of Property Act 1936 (SA)
1 mention (from Para 13)
Property Law Act 1958 (Vic)
1 mention (from Para 26)
Transfer of Land Act 1958 (Vic)
1 mention (from Para 2)