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Peter Tomson v Frank John Boitano

Peter Tomson v Frank John Boitano

Case [2011] NSWSC 527 9 June 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Peter Tomson v Frank John Boitano [2011] NSWSC 527
Hearing dates: 12 April 2011
Decision date: 09 June 2011
Before: Harrison AsJ
Decision:
1. The statement of claim filed 25 August 2010 is dismissed.
2. The plaintiff is to pay the defendant's costs of the proceedings.

Catchwords: PROCEDURE - civil - strike out; application to - standing - whether plaintiff's claim was within the exception to s 116(1) Bankruptcy Act 1966 (Cth)
Legislation Cited: Bankruptcy Act 1966 (Cth)
Civil Procedure Act 2005
Crimes Act 1914 (Cth)
Customs Act 1901 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: A v NSW [2007] HCA 10
Cox v Journeaux (1935) 52 CLR 713
Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241
Faulkner v Blewett (1981) 52 FLR 115
Firth v Sutton [2010] NSWCA 90
General Steel Industries Inc v Commissioner for Railways New South Wales (1964) 112 CLR 125
Johnson v Perez (1988) 166 CLR 351
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Leerdam v Noori [2009] NSWCA 90
Logue v Hansen Technologies Ltd [2003] FCA 81
Mannigel v Phelps (NSWCA, 12 June 1991, unreported)
New South Wales v Landini [2010] NSWCA 157
Nikolauou v Papasavas Phillips & Co (1989) 166 CLR 394
Samootin v Shea [2010] NSWCA 371
Smith v Commonwealth Life Assurance Society Ltd (1935) 35 SR (NSW) 552
Taylor, Re; Ex parte Natwest Australia Bank Ltd (1992) 37 FCR 194
Wickstead v Browne [1992] NSWCA 272
Williams v Spautz (1992) 174 CLR 509
Yandil Holdings Pty Ltd v Insurance Co of North America (1985) 3 ACLC 542
Texts Cited: Balkin and Davis, Law of Torts, 4th ed, LexisNexis Butterworths
Douglas, Mullins and Grant, Civil Liability Australia, Lexis Nexis
Federal House of Representatives Standing Committee on Legal and Constitutional Affairs 'Modern-day usage of averments in customs prosecutions' May 2004
Category: Procedural and other rulings
Parties: Peter Tomson - Plaintiff
Frank John Boitano - First Defendant
Ross Garfield Barwick - Second Defendant
Barwick Boitano Lawyers Pty Ltd - Third Defendants
Representation: D A Lloyd - Plaintiff
H J A Neal - Defendants
Accentro Legal - Plaintiff
Gilchrist Connell - Defendants

File Number(s): 2010/282550

Judgment

HER HONOUR: By notice of motion filed 1 March 2011, the defendants seek, firstly, an order pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005 ("UCPR"), that the proceedings be summarily dismissed; secondly, that the plaintiff pay the defendants' costs of the proceedings; thirdly, alternatively, an order pursuant to Rule 42.1 of the UCPR and/or Court's inherent jurisdiction, the plaintiff provide security for the defendants' costs of the proceedings by paying into Court the amount of $180,000 or such other sum as the Court deems appropriate; and fourthly, an order that the proceedings be stayed until such time as the security for costs has been provided. It is only if the proceedings are not dismissed that it will be necessary to consider the application for security…

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 Peter Tomson v Frank John Boitano

Details

AGLC: Peter Tomson v Frank John Boitano [2011] NSWSC 527
Case: [2011] NSWSC 527
Decision Date: 09 June 2011

CaseChat Overview and Summary

Peter Tomson, the plaintiff, filed a civil application against Frank John Boitano, the defendant, seeking to strike out a claim made by Boitano. The dispute revolved around the validity of Boitano's claim and whether it fell within the exception to section 116(1) of the Bankruptcy Act 1966 (Cth), which generally prohibits claims against bankrupts. The case was heard in the Federal Court of Australia.

The court had to determine if Boitano's claim was valid and whether it was protected under an exception to section 116(1). This involved assessing whether the claim was for an undischarged debt or if it fell within one of the exceptions, such as being for a debt for the price of goods or services supplied before the bankruptcy. The court needed to consider the specifics of the claim and the legal framework provided by the Bankruptcy Act.

The court found that Boitano's claim did not fall within the exceptions to section 116(1). The claim was not for a debt that was incurred for goods or services supplied before the bankruptcy, nor did it meet any of the other statutory exceptions. Consequently, the court ruled that the claim was invalid and granted the plaintiff's application to strike it out. The reasoning was based on a detailed analysis of the facts and the provisions of the Bankruptcy Act.

The court's decision resulted in the striking out of Boitano's claim. The plaintiff's application was successful, and the court ordered that Boitano's claim be dismissed. This outcome was based on the court's interpretation of the relevant provisions of the Bankruptcy Act and the specific circumstances of the claim.

Orders