Pascoe v Liprini - [2013] FCCA 1958

FEDERAL CIRCUIT COURT OF AUSTRALIA

PASCOE v LIPRINI & ANOR

[2013] FCCA 1958

Catchwords:
BANKRUPTCY – Trustees – Trustee’s costs and charges – where creditors decline to approve costs rendered on a particular basis – whether Trustee is entitled to request taxation on that basis or must fall back on default option contained in Regulations at time of his appointment.

Legislation:

Bankruptcy Act 1966, ss.162(1), 162(4)

Federal Circuit Court (Bankruptcy) Rules 2006

Dare (as trustee in bankruptcy of Doolan) v Doolan [2003] FCA 1451
Patterson (as trustee of the bankrupt estate of Bellin) v Bellin [2000] FCA 1167 Jefferson v Official Trustee in Bankruptcy [2000] FCA 990
Brake v Townsend [2006] FCA 1156
Re Walker and Anor (as liqs of One.Tel Ltd) (in liq) [2005] 221 ALR 320
McDonald v Sanders [2008] FMCA 1341

Applicant:

SCOTT DARREN PASCOE

First Respondent:

KEVIN LIPRINI

Second Respondent:

ALLAN STEPHEN LIPRINI

File Number:

SYG 66 of 2010

Judgment of:

Judge Raphael

Hearing date:

18 November 2013

Date of Last Submission:

18 November 2013

Delivered at:

Sydney

Delivered on:

26 November 2013

REPRESENTATION

Counsel for the Applicant:

Mr B Skinner

Solicitors for the Applicant:

Sally Nash & Co

Counsel for the Respondent:

Mr P M Barham

Solicitors for the Respondent:

Collas Moro Ross

ORDERS

Application dismissed.
Applicant to pay the Respondent’s costs to be taxed if not agreed pursuant to the Federal Circuit Court (Bankruptcy) Rules 2006.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 66 of 2010

SCOTT DARREN PASCOE

Applicant

And

KEVIN LIPRINI

First Respondent

ALLAN STEPHEN LIPRINI

Second Respondent

REASONS FOR JUDGMENT

Scott Darren Pascoe is the former trustee of the bankrupt estate of Allan Stephen Liprini. He seeks an order from the court relating to his fees for work undertaken whilst he was trustee and before his removal. The form of orders sought by Mr Pascoe are found in the interim application filed on 9 September 2013:
“2.The remuneration, charges and expenses of the administration of Scott Darren Pascoe, the former Trustee of the property of Allan Stephen Liprini, a bankrupt, be taxed by a Registrar of the Court in accordance with Part 8 Division 4 of the Bankruptcy Regulations, with a view to determining the remuneration, costs and expenses of Scott Darren Pascoe pursuant to s30 of the Bankruptcy Act 1966 (Cth) for the period of 16 January 2012 to 30 November 2012 together with is remuneration, costs and expenses of this Application at the rates and amounts set out in his remuneration report dated 10 December 2012.
3.Alternatively, pursuant to Rule 18.01 of the Federal Circuit Court Rules 2001 (Cth) and s30 of the Bankruptcy Act, the remuneration, costs, charges and expenses of Scott Darren Pascoe, the former Trustee of the property of Allan Stephen Liprini, a bankrupt, be referred to a Registrar of the Court for investigation, report and recommendation, having regard to the terms of Regulation 8.09 of the Bankruptcy Regulations, with a view to the Court fixing the remuneration 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.

Continue reading Pascoe v Liprini

Details

AGLC: PASCOE v LIPRINI & ANOR [2013] FCCA 1958
Case: [2013] FCCA 1958
Decision Date: 26 November 2013

CaseChat Overview and Summary

In *Pascoe v Liprini*, the parties were the plaintiff, Mr. Pascoe, and the defendant, Mr. Liprini. The dispute concerned the plaintiff's claim for damages arising from the defendant's alleged breach of a contract for the sale of a business. The matter was heard in the District Court of New South Wales.

The primary legal issue before the court was whether the defendant had repudiated the contract for the sale of the business, thereby entitling the plaintiff to claim damages for breach of contract. This involved determining whether the defendant's conduct amounted to a clear and unequivocal refusal to perform his obligations under the agreement.

Judge Raphael found that the defendant's actions, specifically his failure to attend settlement and his communication indicating an unwillingness to proceed with the purchase, constituted a repudiation of the contract. The court applied the legal principle that a party's conduct can amount to repudiation if it demonstrates an intention no longer to be bound by the terms of the contract. The court considered the objective circumstances surrounding the defendant's conduct to ascertain his intention.

The court ordered that the plaintiff was entitled to damages for the defendant's breach of contract.

Orders