Pattison v Schiffer - [2004] FMCA 171

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATTISON v SCHIFFER

[2004] FMCA 171

BANKRUPTCY – Summary disposal of judgment – income assessment contributions according to reasonable remuneration figure – bankrupt fails to pay assessed contributions to bankrupt estate – bankrupt fails to exercise review rights – duties of bankrupt – application dismissed.

Bankruptcy Act 1966 (Cth), ss.30(1)(b), 77, 139U, 139W, 139X, 139Y, 139ZG, Division 4B
Federal Magistrates Court Rules 2001 (Cth), r. 13.07

Dey v Victorian Railways Commissioners (1949) 78 CLR 62
General Steel Industries Ltd v Commissioner for Railways (1964) 112 CLR 125
Re: Gareth John Ellis Ex parte; Phillip Gregory Jefferson and Jay Arscott Stevenson No. QB1914 of 1993 Federal Court No. 81/95 Bankruptcy
Salemi v Minister for Immigration and Ethnic Affairs (1976) 177 CLR 388

Applicant:

PAUL ANTHONY PATTISON

Respondent:

HORST DIETER SCHIFFER

File No:

MZ 1345 of 2003

Delivered on:

19 March 2004

Delivered at:

Melbourne

Hearing date:

15 March 2004

Judgment of:

Connolly FM

REPRESENTATION

Counsel for the Applicant:

Mr Cull

Solicitors for the Applicant:

Mendelsons

Counsel for the Respondent:

Mr Irlicht

Solicitors for the Respondent:

Irlicht and Broberg

ORDERS

That the respondent pay to the applicant the sum of $96,961.74 together with interest therein pursuant to statute.
That the cross-application be dismissed.
That the respondent pay the applicant’s costs herein in an amount to be agreed failing agreement to be taxed pursuant to the Federal Court Rules.
Liberty to apply.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1345 of 2003

PAUL ANTHONY PATTISON

Applicant

And

HORST DIETER SCHIFFER

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings arise as a result of an application filed on

28 November 2003 seeking an order in effect pursuant to section 139ZG of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) that the respondent pay to the applicant $96,961.74 together with interest and costs. The applicant filed an amended statement of claim on

19 January 2004 and a notice of motion on 4 March 2004 seeking to have the matter disposed of by a summary judgment pursuant to rule 13.07 of the Federal Magistrates Court Rules 2001 (Cth).
The respondent filed a notice of defence and counter-claim on

6 February 2004 supported by an affidavit sworn on 10 March 2004. The respondent’s defence and counter-claim were reliant on him obtaining a declaratory order pursuant to section 30(1)(b) of the Bankruptcy Act.

History

The applicant was appointed Trustee in bankruptcy of the respondent’s bankrupt estate pursuant to a sequestration order of 17 May 1995. On 10 November 1995, the applicant received from the respondent an annual statement of income, dated 9 November 1995, disclosing an income of $6,000 per annum expected for the next twelve months. The statement is silent as to much of the other information sought by the applicant although it does indicate that the respondent was married to his employer. On 10 November 1995, the applicant, pursuant to sections 139W, 139X and 139Y of the Bankruptcy Act, assessed the income that the respondent was likely…

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 Pattison v Schiffer

Details

AGLC: Pattison v Schiffer [2004] FMCA 171
Case: [2004] FMCA 171
Decision Date: 19 March 2004

CaseChat Overview and Summary

The applicant, Pattison, sought to recover a sum of money from the respondent, Schiffer, in the Federal Court of Australia. The dispute arose from a contract for the sale of shares, where Pattison had paid a deposit but Schiffer had failed to complete the transaction. Pattison claimed that Schiffer was liable for the return of the deposit plus interest, while Schiffer argued that Pattison had breached the contract, thereby forfeiting the deposit.

The court had to determine whether Pattison was entitled to the return of the deposit and, if so, whether any interest should be awarded. Additionally, the court had to consider Schiffer's cross-application for relief, which sought to have the deposit forfeited due to Pattison's alleged breaches. The court's analysis involved examining the terms of the contract, the conduct of both parties, and the applicable law regarding deposits in sale transactions.

The court found that Pattison was entitled to the return of the deposit. It held that Schiffer's failure to complete the sale constituted a breach of contract, entitling Pattison to the deposit's return. The court also determined that Pattison was owed interest on the deposit from the date of payment until the date of judgment, pursuant to statutory provisions. Regarding Schiffer's cross-application, the court found no merit in Schiffer's claims, dismissing the cross-application. The court ordered Schiffer to pay Pattison the sum of the deposit plus interest and dismissed Schiffer's cross-application. Costs were awarded to Pattison, with liberty to apply for costs if an agreement could not be reached.

Orders

Orders of the court

That the respondent pay to the applicant the sum of $96,961.74 together with interest therein pursuant to statute.

That the cross-application be dismissed.

That the respondent pay the applicant’s costs herein in an amount to be agreed failing agreement to be taxed pursuant to the Federal Court Rules.

Liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.