Pascoe v Boensch - [2009] FMCA 447

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…

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: [2009] FMCA 447
Decision Date: 5 May 2009

CaseChat Overview and Summary

Pascoe v Boensch was a matter heard in the Supreme Court of New South Wales, where the primary dispute concerned an application for an adjournment due to the last-minute unavailability of counsel. The plaintiff, Pascoe, sought the adjournment to allow for the appearance of their counsel, Mr Heath, who was unexpectedly unavailable on the day of the hearing. The defendant, Boensch, opposed the adjournment on the grounds that the plaintiff had not exercised reasonable diligence in securing their counsel's attendance.

The court needed to determine whether the application for an adjournment was justified under the circumstances and whether the plaintiff's lack of diligence warranted the imposition of costs on an indemnity basis. The court also had to decide on the appropriate timing and conditions for the hearing of the matter upon its resumption.

In its decision, the court granted the adjournment, finding that the plaintiff's reasons for the unavailability of their counsel were sufficient to warrant the postponement of the hearing. The court emphasised the importance of counsel being prepared to attend court on scheduled dates and found that the plaintiff had acted reasonably in attempting to secure their counsel's attendance. However, the court held that the plaintiff's failure to confirm the availability of their counsel beforehand contributed to the need for an adjournment. Consequently, the court ordered that the defendant be paid indemnity costs for the appearance of the plaintiff's counsel and any other costs incurred due to the adjournment. These costs were to be paid promptly, within seven days of taxation or assessment, and not to await the outcome of the proceedings. The court also set specific deadlines for the filing and serving of further evidence and any proposed amended application and statement of claim. The matter was subsequently stood over for hearing on a specified date, with liberty to apply for further adjournments on short notice.

Orders

Orders of the court

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).

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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