Pascoe v Boensch
[2009] FMCA 447
•5 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PASCOE v BOENSCH (No.8) | [2009] FMCA 447 |
| PRACTICE & PROCEDURE – Adjournment where Counsel unavailable at last moment. COSTS – Indemnity costs awarded. |
| Bankruptcy Act 1966, ss.120, 121 |
| State of Queensland v J L HoldingsPty Ltd [1997] 189 CLR 146 GMAC Pty Ltd v Black & Decker Inc [2007] FCA 1680 GMAC Pty Ltd v Black & Decker Inc & Anor [2007] HCA Trans662 |
| Applicant: | SCOTT DARREN PASCOE |
| Respondent: | FRANZ BOENSCH |
| File Number: | SYG 1995 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 5 May 2009 |
| Date of Last Submission: | 5 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 5 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Spencer |
Solicitors for the Applicant: | McLean & Associates |
Counsel for the First Respondent: | Mr M Heath |
| Solicitors for the First Respondent: | Wright Commercial Laywers |
| Solicitors for the Second Respondent: | Shanahan Tudhope |
ORDERS
Adjournment granted.
The Trustee pay Mr Boensch's costs on an indemnity basis for the appearance of Mr Heath and his solicitor today and any other costs thrown away as a result of this adjournment.
Those costs be paid within seven days of taxation or assessment and not await the outcome of these proceedings.
Applicant to file and serve any further evidence together with an indication of any extract from transcript to be tendered on or before 26 May 2009.
Applicant to file and serve any proposed amended application and statement of claim on or before 26 May 2009.
Matter stood over until 23 July 2009 for hearing at 10.15 am.
Liberty to apply on 2 days notice (to the Registrar in my absence).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1995 of 2006
| SCOTT DARREN PASCOE |
Applicant
And
| FRANZ BOENSCH |
Respondent
REASONS FOR JUDGMENT
The proceedings between Mr Boensch and his bankruptcy Trustee, Mr Pascoe, have been around this court for almost three years. The first application was filed on 19 July 2006. Mr Pascoe has always alleged that a disposition by Mr Boensch of his home and workplace was a disposition that was void against him as the Trustee. The matter has an unhappy litigation history in that after it first came before me it went to the Federal Court on appeal and was then remitted back to me, at which time there was a decision made to hear a separate issue. That issue was determined by me in December 2007 and then subject to an appeal to the Federal Court, where my judgment was upheld and from there an application for special leave to the High Court was made, which was not granted.
The upshot of those proceedings is there now has been held to exist a disposition in 1999 by the creation of a trust in favour of the children of Mr Boensch. Today Mr Heath, on behalf of Mr Boensch, specifically denied that the 1999 disposition retained for Mr Boensch any residual interest in the property. The result of that concession is that any part of the proceedings which related to the creation of trust documents in 2004 was no longer necessary. This alone may have reduced the time that the court might take on hearing the dispute quite considerably.
After the High Court application was determined the matter came back before me and on 17 March 2009 I gave some directions concerning the future conduct of the case, including the hearing of an application that Mr Boensch had had filed on 1 September 2008 to dismiss the proceedings. The Trustee was required to file and serve any application to amend his Application and Statement of Claim and any evidence in support on or before 25 March 2009. The Trustee did file in accordance with those orders and submitted that on the basis of some examinations of Mr Boensch that had taken place on 16 and 17 March 2009 there was sufficient evidence to warrant my hearing a claim under ss.120 and 121 of the Bankruptcy Act 1966 (the “Act”) in respect of the 1999 disposition. What was not done was to indicate to the court in a fulsome manner what that evidence was.
This morning Mr Spencer appeared on behalf of the Trustee. He told me that his instructing solicitor had only discovered yesterday that Mr Johnson, who had appeared in all the previous proceedings and who is deeply familiar with this case, was unable to attend today because he was double booked. I can only assume that Mr Johnson's other booking was in a court superior to this one and that he considered that seniority prevailed over the lengthy association that he has had with this proceeding in which he was clearly very much part heard. Mr Spencer informed me that he had received the papers in the matter yesterday afternoon and was not able to represent properly the Trustee if the matter was to be heard today. He recognised the lacuna in evidence and asked that he be given an adjournment so that he could familiarise himself with the proceedings and so that sufficient evidence could be put on to make an arguable case for the amendments that were sought.
Mr Heath has resisted the adjournment. In his helpful written submissions filed in accordance with my earlier orders he speaks eloquently of the current law relating to an application of this nature and in particular the views expressed by the High Court in State of Queensland v J L HoldingsPty Ltd [1997] 189 CLR 146, Kirby J at [167]. Mr Heath rightly points me to the decision of Heerey J in GMAC Pty Ltd v Black & Decker Inc [2007] FCA 1680 where his Honour said that J L Holdings:
“Is not authority for the proposition that amendments, adjournments and other procedural indulgences must always be granted and that the balm of costs will always be sufficient.”
Mr Heath made reference to another judicial comment in the same GMAC case, this time by Finkelstein J who said:
“A close reading of J L Holdings shows that the High Court was confining its comments to the case where costs would provide full compensation to the opposite party.”
and he noted:
“[P]arties do incur losses resulting from delay that can never be compensated by a costs order.”
Also I note the view expressed by Gummow J in an application for special leave to the High Court in GMAC Pty Ltd v Black & Decker Inc & Anor [2007] HCA Trans662 where his Honour said:
“I am not sure that if you got here and J L Holdings was looked at again that it might not undergo some reinterpretation. I am not sure the reinterpretation would help you, in this sense, and I only put this tentatively. One of the things not discussed in any detail in JL at any rate is the importance of parties observing directions in complicated cases, patent cases in particular I say from personal experience, and directions are orders of the Court.”
However, J L Holdings is the current law and I would not presume upon the views that might be expressed by a future High Court if it is to be reconsidered. I shall look at this matter on the basis of what was said in J L Holdings noting the views of Finkelstein and Heerey JJ. Whilst I appreciate that Mr Heath is at somewhat of a disadvantage because he was unable to put his client on affidavit as to the disadvantage that he might suffer if this matter was adjourned for a short period given the immediacy of the application, he did say something about that in his earlier written submissions. Mr Boensch has been bankrupt for a considerable period of time and he has been required to attend court on a lengthy number of occasions. That inconvenience should not be underestimated. But by the same token this application is in a way independent of his bankruptcy and, but for matters that I know not of, his bankruptcy may have been concluded well before today.
On the other hand, I have little doubt that one does not obtain the services of a legal team such as Mr Heath and his instructing solicitors without considerable sacrifice. Orders for costs have been made in all the proceedings so far in favour of Mr Boensch but whether those costs have been assessed and paid I know not. I think that the absence of Mr Johnson today is an unfortunate occurrence but I believe that it is in the best interests of all parties that the issues raised by Mr Pascoe be dealt with. In my view that would be the best way of concluding this cantankerous litigation. For that reason and because I feel that this is a case where the balm of costs can compensate Mr Boensch, or rather that I have not actually seen any evidence that would persuade me that it did not, and because I sympathise with the situation of Mr Spencer I am prepared to grant an adjournment. Regrettably, because of this court's apparent popularity with persons wishing to seek reviews of decisions of the Refugee Review Tribunal, I cannot offer an immediate hearing date but I am able to provide one either on 22, 23 or 24 July. I would also order that the Trustee pay Mr Boensch's costs on an indemnity basis for the appearance of Mr Heath and his solicitor today and any other costs are thrown away as a result of this adjournment. I would further order that those costs be paid within seven days of taxation or assessment and not await the outcome of these proceedings.
The order for costs which I have just made must include the costs of Mr Corlett who appears on behalf of Ms Boensch another party to the proceedings. Mr Corlett has informed me that his costs will be restricted to those of his own attendance this morning but they should also be paid on an indemnity basis.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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