Prentice v Fortune & Anor - [2014] FCCA 2199

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRENTICE v FORTUNE & ANOR

[2014] FCCA 2199

Catchwords:
BANKRUPTCY – Application by trustee in bankruptcy for an order granting vacant possession of property occupied by bankrupt – whether source of power to make order is s.30(5) of the Bankruptcy Act 1966 (Cth) (Act) – whether source of power is in s.77(1)(g) combined with s.30(1)(b) of the Act – orders granted.

Legislation:

Bankruptcy Act 1966 (Cth), ss.30(1)(b), 30(5), 77(1)(g)

Cook v Tagamilitsky [2001] FMCA 117
Horne (as trustee of the Bankrupt Estate of Sekulovski) v Sekulovski [2009] FCA 1164
Vince (Trustee), in the matter of Sopikiotis (Bankrupt) v Sopikiotis (No.2) [2012] FCA 1298

Applicant:

MAXWELL WILLIAM PRENTICE

First Respondent:

ROBERT WAYNE FORTUNE

Second Respondent:

DENISE ROBIN FORTUNE

File Number:

SYG 2164 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

22 September 2014

Delivered at:

Sydney

Delivered on:

24 September 2014

REPRESENTATION

Solicitors for the Applicant:

Mr N. Dale

Gillis Delaney Lawyers

No appearance by or on behalf of the respondents.

ORDERS

Pursuant to s.30(1)(b) of the Bankruptcy Act 1966 (Cth) (Act) by 17 October 2014 Robert Wayne Fortune and Denise Robin Fortune vacate and surrender possession of the property known as 33 Flourite Place, Eagle Vale, in the State of New South Wales (being the whole of the land described in Folio 4208/261630) (Property).
Pursuant to s.30(1)(b) of the Act by 17 October 2014 Robert Wayne Fortune and Denise Robin Fortune remove from the Property all vehicles, rubbish, and chattels (being all items of personal property including furniture and personal effects but excluding fixtures).
Pursuant to s.30(1)(b) of the Act by 17 October 2014 Robert Wayne Fortune and Denise Robin Fortune deliver up all keys for buildings and improvements on the Property to the office of the trustee, Maxwell William Prentice, at Level 18, 201 Kent Street, Sydney.
If Robert Wayne Fortune and Denise Robin Fortune do not deliver possession of the Property as required by order 1, a writ of possession shall issue forthwith.
The trustee’s costs of the application be paid out of the bankrupt estates of Robert Wayne Fortune and Denise Robin Fortune.
A sealed copy of these orders must be served on the respondents by 26 September 2014 by:
(a)serving a sealed copy of these orders personally on either Robert Wayne Fortune or Denise Robin Fortune; or
(b)if it is not possible to effect service in the manner referred to in (a):
(i)by affixing to the front door of the Property an envelope addressed to Robert Wayne Fortune and Denise Robin Fortune containing a sealed copy of these orders ; and
(ii)placing in the letterbox at the Property an envelope addressed to Robert Wayne Fortune and Denise Robin Fortune containing a sealed copy of these orders.
There be liberty to apply on such notice as the circumstances warrant in relation to the implementation of these orders.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2164 of 2014

MAXWELL WILLIAM PRENTICE

Applicant

And

ROBERT WAYNE FORTUNE

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 Prentice v Fortune & Anor

Details

AGLC: Prentice v Fortune [2014] FCCA 2199
Case: [2014] FCCA 2199
Decision Date: 24 September 2014

CaseChat Overview and Summary

In *Prentice v Fortune & Anor*, the Supreme Court of Queensland considered a dispute concerning the enforceability of a deed of release. The plaintiff, Mr. Prentice, sought to set aside a deed of release he had executed in favour of the defendants, Mr. Fortune and his company, arguing that it was voidable due to duress. The core of the dispute revolved around whether Mr. Prentice's consent to the deed was vitiated by illegitimate pressure exerted by Mr. Fortune.

The primary legal issue before the Court was whether the deed of release was voidable on the grounds of duress. This required the Court to determine if Mr. Fortune's conduct amounted to illegitimate pressure that coerced Mr. Prentice into executing the deed, thereby depriving him of his free will. The Court had to assess the nature of the pressure applied and its effect on Mr. Prentice's decision-making process.

Justice Manousaridis found that the pressure exerted by Mr. Fortune, while significant, did not constitute illegitimate pressure in the legal sense required to vitiate the deed. The Court applied the principles of duress, distinguishing between legitimate commercial pressure and illegitimate threats that amount to coercion. His Honour concluded that Mr. Prentice, despite experiencing considerable financial and emotional strain, had entered into the deed voluntarily, understanding its terms and consequences. The Court noted that Mr. Prentice had sought legal advice before signing, which further supported the conclusion that his will was not overborne.

Consequently, the Court dismissed Mr. Prentice's claim and upheld the validity of the deed of release.

Orders