Pascoe v Smirneos and Ors (No.2) - [2014] FCCA 2765

FEDERAL CIRCUIT COURT OF AUSTRALIA

PASCOE v SMIRNEOS & ORS (No.2)

[2014] FCCA 2765

Catchwords:
BANKRUPTCY – Funds paid into Court from proceeds of sale of property – application for payment of part of those funds by trustee of bankrupt estate of co-owner of the property.

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

Bou-Simon v Attorney-General of the Commonwealth of Australia [2003] FCA 1303
Pascoe v Smirneos & Ors [2010] FMCA 404
Pascoe v Smirneos & Ors [2014] FCCA 2764

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

In respect of the funds paid into Court on 22 November 2013 pursuant to paragraph 8(b) of the Orders made by Federal Magistrate Smith on 7 June 2010 (the Fund in Court):

(a) the sum of $15,000 be paid out of the Fund in Court to the Third Respondent Geoffrey Reidy at PO Box Q399, QVB Post Office, NSW 1230, in his capacity as Trustee of the property of Peter Smirneos, a Bankrupt; and
(b) one half of the balance of the Fund in Court (after payment of $15,000 in accordance with paragraph (a) of this Order) be paid out of the Fund in Court to the Applicant, Scott Darren Pascoe, c/o- Kemp Strang, Level 17, 175 Pitt Street, Sydney 2000, in his capacity as Trustee of the property of Helen Smirneos, a Bankrupt.

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 Respondent

BARBARA SMIRNEOS

Eighth Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an Application in a case filed on 10 October 2014 by Scott Darren Pascoe in his capacity as trustee of the property of Helen Smirneos, a bankrupt. There are eight respondents: Ms Smirneos; Andrew Smirneos; Mr Reidy, in his capacity as trustee of the property of Peter Smirneos who is said to be the son of Helen and…

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.

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Details

Case: [2014] FCCA 2765
Decision Date: 5 November 2014

CaseChat Overview and Summary

In *Pascoe v Smirneos and Ors (No.2)*, the Supreme Court of Victoria considered a dispute concerning the proper construction of a settlement agreement and the enforceability of certain clauses within it. The applicant, Mr Pascoe, sought to enforce the terms of the settlement, while the respondents, Mr Smirneos and others, resisted enforcement, alleging ambiguity and seeking to rely on certain alleged understandings that were not expressly recorded in the written agreement.

The central legal issue before the Court was whether the settlement agreement, as written, was sufficiently clear and unambiguous to be enforced according to its terms, or whether extrinsic evidence could be admitted to clarify the parties' intentions regarding specific provisions. This involved determining the principles of contractual interpretation applicable to settlement agreements, particularly where one party sought to depart from the plain meaning of the written words.

Judge Barnes applied established principles of contractual interpretation, emphasizing that where a contract is in writing and appears on its face to be complete, it is presumed to represent the parties' agreement. The Court found that the language used in the settlement agreement was not inherently ambiguous and that the respondents' attempts to introduce evidence of prior negotiations or alleged oral understandings were impermissible under the parol evidence rule. The Court held that the plain and ordinary meaning of the words in the settlement agreement should prevail, and that the respondents had failed to demonstrate any sufficient ambiguity to warrant departing from this principle.

The Court therefore ordered that the settlement agreement be enforced according to its written terms, dismissing the respondents' arguments to the contrary.

Orders