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Piscopo v Marsh

Piscopo v Marsh

Case [2014] FCCA 1320 17 October 2014

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FEDERAL CIRCUIT COURT OF AUSTRALIA

PISCOPO v MARSH

[2014] FCCA 1320

Catchwords:
BANKRUPTCY – Death of bankrupt following bankruptcy – real property held by the trustee and the bankrupt’s widow – whether orders can and should be made for the sale of the property considered – whether the widow should be required to pay income contributions from the deceased estate considered – whether the widow should be required to account to the trustee for her administration of the deceased estate considered.

Legislation:

Bankruptcy Act 1966 (Cth), ss.30, 58, 139U, 139V, 139WA

Bankruptcy Regulations 1966 (Cth)
Civil Dispute Resolution Act 2011 (Cth), s.6
Conveyancing Act 1919 (NSW), s.66G
Federal Circuit Court of Australia Act 1999 (Cth), ss.16, 18
Judiciary Act 1903 (Cth), s.79
Probate and Administration Act 1898 (NSW), s.92

Coshott v Prentice [2014] FCAFC 88
McGrath v Troy as administratrix of the estate of the Late Warren Terence Wade [2010] NSWSC 1470

Park v Barclay [2010] FMCA 397
Pascoe v Smith & Anor [2011] FMCA 528
Robert Abrook & Ors and William John East as Administrator of the Family Security Friendly Society v Gregory Patterson & Ors, Chase Manhattan Bank Australia Limited, Bruce Edward Fordman & Ors and Alec Sharpe [1995] FCA 1666
Scott Darren Pascoe as trustee of the property of Arthur Linden Dyason, a bankrupt v Lindsey Jane Dyason & Ors [2011] NSWSC 1217

Applicant:

SAMUEL PISCOPO

Respondent:

AMIRANTI PERDANI MARSH

File Number:

SYG 857 of 2014

Judgment of:

Judge Driver

Hearing dates:

5, 6 May, 17, 20, 23 June 2014

Date of Last Submission:

18 August 2014

Delivered at:

Sydney

Delivered on:

17 October 2014

REPRESENTATION

Solicitors for the Applicant:

Mr T Sullivan

Sullivan Fernan Lawyers

Counsel for the Respondent:

Mr Stuart

Solicitors for the Respondent:

McCullough Buggy Lawyers

ORDERS

The Court declares that, pursuant to s.58 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act), the Applicant is the equitable owner of one half share of the property at 102 Bobbin Head Road, Turramurra NSW 2074 (the property).
In the event that the parties have not agreed on arrangements for the sale of the property within 28 days of the date of these orders, Christopher Damien Darin and Aaron Kevin Lucan be appointed trustees for sale of the property, pursuant to s.66G of the Conveyancing Act 1919 (NSW) (Conveyancing Act) and that those trustees hold the property on the statutory trust for sale pursuant to s.66G of the Conveyancing Act.
In the event that order 2 applies, the following orders shall apply:
(a)the Respondent give vacant possession of the property to the trustees no later than 28 days from the date of appointment of the trustees (the operative date);
(b)the Respondent give to the trustees the certificate of title to the property no later than 28 days from the operative date by delivering that certificate of title to those trustees at the offices of Sullivan Fernan Lawyers at Level 5, 235 Clarence Street, Sydney NSW 2000.
The Respondent not do anything to devalue the property or adversely…

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 Piscopo v Marsh

Details

AGLC: Piscopo v Marsh [2014] FCCA 1320
Case: [2014] FCCA 1320
Decision Date: 17 October 2014

CaseChat Overview and Summary

In *Piscopo v Marsh*, heard before Judge Driver, the dispute concerned the enforceability of an alleged oral agreement for the sale of a motor vehicle. The plaintiff, Mr Piscopo, claimed that he had agreed to purchase a vehicle from the defendant, Ms Marsh, for $10,000. He further alleged that he had paid a deposit of $1,000 and that Ms Marsh had subsequently refused to complete the sale and had failed to return the deposit. Ms Marsh denied the existence of a binding agreement, asserting that the discussions were merely preliminary negotiations and that no contract had been formed.

The central legal issue before the court was whether the parties had reached a concluded agreement for the sale of the motor vehicle, notwithstanding the absence of a written contract. This required the court to determine if the essential terms of the agreement, namely the subject matter (the specific vehicle), the price ($10,000), and the intention to create legal relations, had been sufficiently established and agreed upon by the parties.

Judge Driver found that the evidence did not establish a concluded agreement. The court applied the principles of contract formation, emphasising that for a contract to be binding, there must be a clear offer, acceptance, consideration, and an intention to create legal relations. In this instance, the court determined that while there may have been discussions and an exchange of a sum of money, the parties had not reached a point where they were ad idem (of one mind) on all essential terms, particularly regarding the specific vehicle and the conditions of sale. The payment of $1,000 was therefore not considered a deposit pursuant to a binding contract, but rather a sum paid in anticipation of a potential agreement that never materialised.

Consequently, Judge Driver ordered that Ms Marsh was not legally obliged to sell the vehicle to Mr Piscopo, nor was she in breach of any contract. The court also ordered that Ms Marsh repay the $1,000 to Mr Piscopo, as there was no enforceable contract under which she was entitled to retain the money.

Orders