Pascoe v Boensch & Anor (No 9)

Case [2009] FMCA 769


FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE v BOENSCH & ANOR (No.9) [2009] FMCA 769
PRACTICE AND PROCEDURE – Amendment of pleadings – where applicant sought leave to amend points of claim some three years after proceedings commenced – where party in default claimed it had always intended to make those amendments – where significant prejudice to other party – decision in J L Holdings considered – summary judgment – whether reasonable prospect of success – tests for insolvency considered.
Bankruptcy Act 1966 (Cth), ss.120, 121
Federal Court of Australia Act1976 (Cth), s.31A
Court Procedure Rules 2006 (ACT)
Federal Court Rules
Federal Magistrates Court Rules 2001
Pascoe v Boensch & Anor(No.6) [2007] FMCA 2038
Pascoe v Boensch [2008] FCAFC 147
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274
Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229
Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623
Chameleon Mining NL v Murchison Metals Ltd [2009] FCA 137
Re AWB Ltd (No.3), Re; Australian Securities and Investments Commission v Lindberg  [2009] VSC 209
Aon Risk Services Limited v Australian National University [2009] HCA 27
Commissioner of Taxation v Grimaldi (No. 5) [2009] FCA 765
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd) [2006] FCA 1352
Keith Smith East West Transport Pty Ltd (in liq) v Australian Taxation Office (2002) 42 ACSR 501
Expile Pty Ltd v Jaab’s Excavations Pty Ltd (2003) 45 ACSR 711
Lewis v Doran (2005) 219 ALR 555
Box Valley Pty Ltd v Kidd (2006) 24 ACLC 471
Sutherland v Hanson Construction Materials Pty Ltd (2009) 254 ALR 650
Hall v Poolman (2007) 215 FLR 243
Applicant: SCOTT DARREN PASCOE
First Respondent: FRANZ BOENSCH
Second Respondent: SABINE BOENSCH
File Number: SYG 1995 of 2006
Judgment of: Raphael FM
Hearing date: 23 July 2009
Date of Last Submission: 23 July 2009
Delivered at: Sydney
Delivered on: 13 August 2009

REPRESENTATION

Counsel for the Applicant: Mr P Walsh
Solicitors for the Applicant: McLean & Associates
Counsel for the First 
Respondent:

Mr M Heath

Solicitors for the First
Respondent:

Malcolm Wright Lawyer

ORDERS

  1. Applicant’s application to amend dismissed.

  2. Substantive application dismissed.

  3. Applicant to pay the Respondent’s costs of the proceedings including any reserved costs, such costs to be taxed or assessed at 80 percent of the Federal Court scale.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1995 of 2006

SCOTT DARREN PASCOE

Applicant

And

FRANZ BOENSCH

First Respondent

SABINE BOENSCH

Second Respondent

REASONS FOR JUDGMENT

  1. There are two interim applications before me in this matter that commenced on 19 July 2006 as proceedings brought by a Trustee in bankruptcy to set aside what he considered was a purported declaration of trust made in 1999 and formalised in 2004. The original application was supported by a points of claim and sought relief under s.121 of the Bankruptcy Act 1966 (Cth) (the “Act”)…

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Details
AGLC
Pascoe v Boensch & Anor (No 9) [2009] FMCA 769
Case
[2009] FMCA 769
Decision Date

CaseChat Overview and Summary

Pascoe v Boensch & Anor (No 9) was a legal dispute between the applicant, Pascoe, and the respondents, Boensch and another. The matter was heard in the Federal Court of Australia, which was tasked with deciding on a substantive application and an application to amend an earlier order. The substantive application was related to an ongoing legal battle between the parties, while the application to amend was an attempt by Pascoe to modify an existing court order.

The court was required to determine whether Pascoe's application to amend should be granted, as well as whether the substantive application should be upheld. In considering these issues, the court examined the relevant laws, precedents, and the evidence presented by both parties. The court's reasoning focused on the merits of the applications and whether they were in line with the principles of justice and fairness.

After carefully considering the arguments and evidence, the court dismissed both the application to amend and the substantive application. The court determined that the proposed amendments were not warranted and that the substantive application did not meet the necessary legal standards. As a result, the applicant was ordered to pay the respondents' costs of the proceedings, including any reserved costs, at 80 percent of the Federal Court scale. These costs were to be taxed or assessed in accordance with the relevant legal provisions.

Orders

Orders of the court

1.

Applicant’s application to amend dismissed.

2.

Substantive application dismissed.

3.

Applicant to pay the Respondent’s costs of the proceedings including any reserved costs, such costs to be taxed or assessed at 80 percent of the Federal Court scale.

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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