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 |
| 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
Applicant’s application to amend dismissed.
Substantive application dismissed.
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
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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- AGLC
- Pascoe v Boensch & Anor (No 9) [2009] FMCA 769
- Case
- [2009] FMCA 769
- Decision Date
CaseChat Overview and Summary
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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