Pascoe v Smirneos - [2014] FCCA 2764

FEDERAL CIRCUIT COURT OF AUSTRALIA

PASCOE v SMIRNEOS & ORS

[2014] FCCA 2764

Catchwords:
BANKRUPTCY – Funds paid into Court – application in relation to part of those funds – oral application by another party for payment of part of those funds or for adjournment – whether in the interests of justice.

Legislation:
Federal Circuit Court Rules 2001 (Cth), r.1.05
Federal Court Rules 2011 (Cth), rr.2.42, 2.43

Bou-Simon v Attorney-General of the Commonwealth of Australia [2003] FCA 1303
Pascoe v Smirneos & Ors [2010] FMCA 404

Applicant:

SCOTT DARREN PASCOE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF HELEN SMIRNEOS, A BANKRUPT

First Respondent:

HELEN SMIRNEOS, A BANKRUPT

Second Respondent:

ANDREW SMIRNEOS

Third Respondent:

GEOFFREY REIDY IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF PETER SMIRNEOS, A BANKRUPT

Fourth Respondent:

WESTPAC BANKING CORPORATION
ABN 33 007 457 141

Fifth Respondent:

NATIONAL LENDING PTY LTD
ACN 119 336 631

Sixth Respondent:

STEVE SMIRNEOS

Seventh Respondent:

PETER SMIRNEOS

Eighth Respondent:

BARBARA SMIRNEOS

File Number:

SYG 346 of 2010

Judgment of:

Judge Barnes

Hearing date:

5 November 2014

Delivered at:

Sydney

Delivered on:

5 November 2014

REPRESENTATION

Solicitors for the Applicant:

Kemp Strang

Counsel for the Third Respondent:

Mr P Cutler

Solicitors for the Fifth Respondent:

Tucker & Cowen Solicitors

ORDERS

The oral application for an order in favour of National Lending Pty Ltd is refused.
The oral application that no orders be made until a further application in a case or other application is made by National Lending Pty Ltd is refused.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 346 of 2010

SCOTT DARREN PASCOE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF HELEN SMIRNEOS, A BANKRUPT

Applicant

And

HELEN SMIRNEOS, A BANKRUPT

First Respondent

ANDREW SMIRNEOS

Second Respondent

GEOFFREY REIDY IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF PETER SMIRNEOS, A BANKRUPT

Third Respondent

WESTPAC BANKING CORPORATION
ABN 33 007 457 141

Fourth Respondent

NATIONAL LENDING PTY LTD
ACN 119 336 631

Fifth Respondent

STEVE SMIRNEOS

Sixth Respondent

PETER SMIRNEOS

Seventh First Respondent

BARBARA SMIRNEOS

Eighth Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This matter came before the Court as an application in a case filed by Scott Darren Pascoe in his capacity as trustee of the property of Helen Smirneos (Ms Smirneos), a bankrupt. There are eight respondents. Five of them are members of the Smirneos family, including Ms Smirneos. The other Respondents are Geoffrey Reidy, as trustee of the property of Peter Smirneos (the son of Ms Smirneos) who is also bankrupt, Westpac Banking Corporation and National Lending Pty Ltd (National Lending). There are appearances today for the Applicant, Mr Reidy and National Lending.
Mr Pascoe seeks orders in respect of funds paid into Court on 22 November 2013 pursuant to orders made by Smith FM on 7 June 2010. The amount paid into Court was $82,520.02. However the orders sought by Mr Pascoe are that $15,000 be paid to Mr Reidy; that half of the balance of the fund (after payment 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 Smirneos

Details

AGLC: Pascoe v Smirneos [2014] FCCA 2764
Case: [2014] FCCA 2764
Decision Date: 5 November 2014

CaseChat Overview and Summary

In *Pascoe v Smirneos*, the County Court of Victoria considered a dispute between a vendor and a purchaser concerning the sale of a property. The purchaser sought to terminate the contract of sale, alleging a breach by the vendor.

The central legal issue before the court was whether the vendor had breached a contractual term requiring them to provide vacant possession of the property on the settlement date. This involved determining the precise meaning and effect of the vacant possession clause within the context of the sale agreement.

Judge Barnes found that the vendor had failed to provide vacant possession as required by the contract. The court reasoned that the presence of a tenant, even one whose lease was due to expire shortly after settlement, constituted a failure to deliver the property free from any encumbrances or rights of occupation. The legal principle applied was that a vendor must deliver a property in a state where the purchaser can immediately occupy and control it, without any third-party rights interfering.

Consequently, the court ordered that the purchaser was entitled to terminate the contract and recover their deposit.

Orders