Partis v Wright & Ors Trading As; DGB Lawyers - [2013] FCCA 1367

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…

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.

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Details

Case: [2013] FCCA 1367
Decision Date: 10 December 2013

CaseChat Overview and Summary

In the Supreme Court of Queensland, Justice Driver considered a dispute between the applicant, Partis, and the respondents, Wright & Ors Trading As and DGB Lawyers. The core of the disagreement concerned the respondents' alleged failure to provide adequate disclosure of relevant documents in earlier proceedings. Partis sought to have the previous judgment set aside on the grounds of this alleged non-disclosure.

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.

Orders