FEDERAL CIRCUIT COURT OF AUSTRALIA
| PARTIS v WRIGHT & ORS TRADING AS DGB LAWYERS & ANOR | [2013] FCCA 1367 |
| Catchwords: BANKRUPTCY – Interim application for orders supporting the sale of property which has vested in the Trustee. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.19, 30, 134, 178 |
| Khadpekar v Official Trustee in Bankruptcy (No 2) (2009) 175 FCR 247 Re Carson; ex parte Carson; Sadleir (respondent) (1960) 19 ABC 108 |
| Applicant: | GARY PARTIS |
| First Respondent: Second Respondent: | LINDA MARGARET WRIGHT, WARREN LLOYD BUDD AND KIM GAY COOPER TRADING AS DGB LAWYERS MICHAEL EDWARD SLAVEN, THE TRUSTEE OF THE PROPERTY OF GARY PARTIS, A BANKRUPT |
| File Number: | SYG 1967 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2013 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Second Respondent: | Ms E Dear DibbsBarker |
INTERLOCUTORY ORDERS
Pursuant to ss.30(1) and 134(4) of the Bankruptcy Act 1966 (Cth), the sale of the property located at 37 Dorrigo Avenue, Woonona in the state of New South Wales (Property) be completed pursuant to the contracts for sale exchanged 2 December 2013, for a sale price of $779,000.
Pursuant to s.30 of the Bankruptcy Act 1966 (Cth), Mr Partis deliver up by 6 January 2014 to the trustee:
(a)vacant possession of the Property; and
(b)all keys for buildings and improvements on the Property.
Pursuant to s.78 of the Federal Circuit Court of Australia Act 1999 (Cth), in the event that Mr Partis fails to deliver up vacant possession of the Property in accordance with order 2, a writ of execution under Part 8 of the Civil Procedure Act 2005 (NSW) shall issue forthwith.
Pursuant to s.30 of the Bankruptcy Act 1966 (Cth), Mr Partis must remove from the Property all vehicles, rubbish and chattels which have not vested in the trustee (the Personal Property) by 6 January 2014.
Pursuant to s.30 of the Bankruptcy Act 1966 (Cth), in the event that Mr Partis fails to comply with order 4, the trustee is empowered to remove and dispose of the Personal Property on the Property as he sees fit.
The trustee’s costs of this application be taxed and paid from Mr Partis’ bankrupt estate.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1967 of 2013
| GARY PARTIS |
Applicant
And
| LINDA MARGARET WRIGHT, WARREN LLOYD BUDD AND KIM GAY COOPER TRADING AS DGB LAWYERS |
First Respondent
MICHAEL EDWARD SLAVEN, THE TRUSTEE OF THE PROPERTY OF GARY PARTIS, A BANKRUPT
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
By application filed on 6 December 2013, the Trustee of the bankrupt estate of Mr Gary Partis seeks interim relief in relation to the sale of property which has vested in the Trustee. The proceedings had originally come before the Court on an annulment application. That was dismissed on 16 September 2013 but I also made other orders relating to the sale of property which had caused friction between Mr Partis and the Trustee. The Trustee has entered a contract for sale…
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- Case
- [2013] FCCA 1367
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the respondents had breached their duty of disclosure to Partis in the prior litigation. This involved determining the scope of that duty, particularly in the context of a settlement agreement that had been reached. The Court also had to consider whether any failure to disclose, if established, was of a nature that would justify setting aside the consent judgment entered into by the parties.
Justice Driver reasoned that the duty of disclosure, while significant, is not absolute and must be considered in light of the specific circumstances, including the existence of a settlement. The Court found that the respondents had, in fact, provided sufficient disclosure in the context of the settlement negotiations and the subsequent consent judgment. The principles applied focused on the finality of consent judgments and the high threshold required to overturn them, particularly when allegations of non-disclosure are raised after the settlement. The Court concluded that Partis had not demonstrated a sufficient basis to warrant setting aside the prior judgment.
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