PRACTICE AND PROCEDURE – application for leave to appeal from an interlocutory judgment of the Federal Magistrates Court – relevant principles – amendment of pleadings – summary dismissal under s 17A of the Federal Magistrates Act 1999 (Cth) – application dismissed
SCOTT DARREN PASCOE v FRANZ BOENSCH and SABINE BOENSCH
NSD 961 of 2009
GRAHAM J 3 NOVEMBER 2009 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 961 of 2009
BETWEEN:
SCOTT DARREN PASCOE Applicant
AND:
FRANZ BOENSCH First Respondent
SABINE BOENSCH Second Respondent
JUDGE:
GRAHAM J
DATE OF ORDER:
3 NOVEMBER 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The applicant’s Application for Leave to Appeal from the judgment of Raphael FM given on 13 August 1999 be dismissed.
2.The applicant pay the first respondent’s costs of the application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF…
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
AGLC
Pascoe v Boensch [2009] FCA 1240
Case
[2009] FCA 1240
Decision Date
CaseChat Overview and Summary
Pascoe v Boensch is a case involving Mr Pascoe, the trustee of the bankrupt estate of Mr Boensch, and Mr Boensch. The dispute pertains to the validity of a transfer of the equitable estate in a property at Rydalmere to the trustee of a trust, and whether this transfer was void under s 121 of the Bankruptcy Act 1966 (Cth). The case was heard by the Federal Court of Australia, with the latest decision focusing on the application for leave to appeal by Mr Pascoe against the dismissal of his substantive application and the refusal to allow an amendment to the Points of Claim.
The legal issues central to this decision involved whether the Federal Magistrates Court properly exercised its discretion in dismissing the substantive application and denying the amendment to the Points of Claim. Mr Pascoe argued that the Federal Magistrate did not adequately consider the merits of his application or the necessity of allowing an amendment. He contended that the delays in the proceedings were due to the natural progression of the case through various courts, including the High Court, and that he should be allowed to prove that Mr Boensch's main purpose in making the transfer was to hinder the division of the property among his creditors. Conversely, Mr Boensch argued that the Federal Magistrate was correct in his assessment and that the delays were excessive, warranting no amendment to the Points of Claim.
In dismissing the application for leave to appeal, the Court found that the Federal Magistrate adequately considered the arguments presented by Mr Pascoe and correctly applied the law. The Court noted that Mr Pascoe had ample opportunity to amend his Points of Claim during the pendency of the separate question, and the delays were not justified. Furthermore, the Court determined that the proposed amendment was essentially a reformulation of the original case rather than a new case, and that the Federal Magistrate did not misinterpret the applicant's counsel's statements. The Court also held that the Federal Magistrate was entitled to draw reasonable inferences from the applicant's previous submissions, which suggested a lack of reasonable prospects of success.
The Court concluded that the Federal Magistrate's decision was just and that the applicant had no reasonable prospects of successfully prosecuting the remainder of his case. Consequently, the application for leave to appeal was dismissed, and Mr Pascoe was ordered to pay the costs of the application.
Orders
Orders of the court
1. The applicant’s Application for Leave to Appeal from the judgment of Raphael FM given on 13 August 1999 be dismissed.
2. The applicant pay the first respondent’s costs of the application.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GRAHAM J
In light of the Full Court’s decision on the separate question which resolved the question as to the validity of the declaration of trust and also the question of ‘sham’, the remaining issue in the case became whether the transfer of the equitable estate in the property at Rydalmere to the trustee of the trust was void under s 121 of Bankruptcy Act 1966 (Cth). Events subsequent to the decision of the Full Court on the separate question In the foregoing circumstances, Raphael FM declined in Pascoe v Boensch (No. 9) to allow an amendment to the Points of Claim in relation to the s 121 case and ordered that the applicant’s application to amend filed 9 April 2009 be dismissed. His Honour ordered that the substantive application filed 19 July 2006 be summarily dismissed and ordered the applicant to pay the respondent’s (Mr Boensch’s) costs of the proceedings including any reserved costs, such costs to be taxed or assessed at 80 per cent of the Federal Court scale. It is his Honour’s judgment in Pascoe v Boensch (No. 9) on those applications which is the subject of the present application for leave to appeal in accordance with s 24(1A) of the Federal Court Act. The applicant, Mr Pascoe, who is the trustee of the bankrupt estate of Mr Boensch, contended that Raphael FM failed to address what was necessary for him to be able to reach a conclusion that the applicant had no reasonable prospects of successfully prosecuting the remainder of his case. The first respondent, Mr Boensch, submitted that his Honour properly addressed the matter and that his Honour was entitled to draw an inference from what was said by counsel representing the applicant on the application before Branson J for leave to appeal in relation to the separate question matter, that the applicant accepted that he had no case which he could advance were the separate question to be decided unfavourably to him. The applicant submitted that his Honour misinterpreted what his then counsel had said. The applicant submitted in relation to the question of amendment that his Honour failed to have regard to the fact that much of the time delay was occasioned by the natural progression of the separate question, which he had suggested, through the courts including the High Court. The first respondent submitted that there were extensive delays and it had been open to the applicant to amend the remainder of his Points of Claim whilst the separate question remained unresolved, especially whilst awaiting the outcome of the application for special leave to appeal to the High Court. A question arises as to whether the character of the matter which the applicant, Mr Pascoe, sought to raise by his proposed amendment was anything other than a reformulation of the matter previously raised in the original Points of Claim rather than an attempt to raise a totally different case. The applicant submitted that it was open to him to prove that Mr Boensch’s ‘main purpose’ in making the transfer of the equitable estate in the Rydalmere property by entering into the declaration of trust was to hinder the process of making it available for division among his creditors and that Raphael FM failed to consider whether, at the time, Mr Boensch was ‘about to become’ insolvent, a relevant issue in relation to proof of main purpose under s 121(2) of the Bankruptcy Act.