Pascoe v Boensch

Case [2009] FCA 1240


FEDERAL COURT OF AUSTRALIA

Pascoe v Boensch [2009] FCA 1240

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

Federal Magistrates Act 1999 (Cth) s 17A
FederalCourt of Australia Act 1976 (Cth) ss 24(1A) and 31A
Bankruptcy Act 1966 (Cth) s 121

Federal Magistrates Court Rules 2001 r 1.03 , r 7.01 and r 13.10
Federal Court Rules O 20 r 4 and r 5
Court Procedures Rules 2006 (ACT) r 21, r 501 and r 502

Pascoe v Boensch (2008) 250 ALR 24
Pascoe v Boensch (No. 9) [2009] FMCA 769
Kowalski v MMAL Staff Superannuation Fund Pty Limited (2009) 259 ALR 319
Pascoe v Boensch (No. 3) [2007] FMCA 2038
Seven Network Ltd v News Ltd (2005) 144 FCR 379
Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Decor Corporation Pty Ltd v Dart Industries Inc (1988) 13 IPR 385
Niemann v Electronic Industries Ltd [1978] VR 431
Re Luck (2003) 78 ALJR 177; 203 ALR 1
Aon Risk Services Australia Limited v Australian National University (2009) 83 ALJR 951; 258 ALR 14
Cropper v Smith (1884) 26 ChD 700
The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146
Wong v Minister of Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10
Blair v Curran (1939) 62 CLR 464
J F Keir Pty Limited v Sparks [2008] FCA 611
Theseus Exploration N.L. v. Foyster (1972) 126 CLR 507
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Inc. v. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372
Boston Commercial Services Pty Ltd (ACN 114 658 070) v GE Capital Finance Australasia Pty Ltd (ACN 070 396 020) (2006) 236 ALR 720
White Industries Australia Ltd v FC of T (2007) 160 FCR 298
Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137
Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401

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.


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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

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Evidence

Evidence Before The Court

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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.

Ratio Decidendi

Legal Principle Established

Established by: GRAHAM J

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