Rashed v Perpetual Trustees Victoria Ltd - [2010] FCA 1046

FEDERAL COURT OF AUSTRALIA
Rashed v Perpetual Trustees Victoria Ltd [2010] FCA 1046

Citation: Rashed v Perpetual Trustees Victoria Ltd [2010] FCA 1046

Parties: RASMIA RASHED v PERPETUAL TRUSTEES VICTORIA LTD (ACN 004 027 258) and MATTHEW KILPATRICK

File number: VID 414 of 2009

Judge: GRAY J

Date of judgment: 31 August 2010

Catchwords:
PRACTICE AND PROCEDURE – service – service by post – whether evidence that letter left in mail room of solicitor’s firm sufficient evidence of posting

PRACTICE AND PROCEDURE – solicitor – notice of ceasing to act – non-compliance with requirement to file affidavit as to giving of seven days’ notice to client – whether solicitor still on the record

COURTS AND JUDGES – judgment – terms of settlement – terms subject to condition precedent – release by another party – whether sufficient evidence that condition precedent satisfied

DEBTOR AND CREDITOR – payment – whether open to creditor to specify particular method of payment – whether non-payment proved by evidence of absence of payment by particular method entered – settlement of proceedings – failure to pay settlement sum into solicitor’s trust account – calculation of interest up to judgment

Legislation: Federal Court of Australia Act 1976 (Cth) s 51A
Federal Court Rules O 7 r 4A(1)(d), O 35 r 7A, O 7 r 4(1)(b), O 7 r 4(2), O 45 r 7(2), O 45 r 7(3)

Date of hearing: 31 August 2010

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 19

Counsel for the applicant: Ms G Crafti

Solicitor for the applicant: Holding Redlich

Counsel for the first respondent: The first respondent did not appear

Counsel for the second respondent: The second respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 414 of 2009

BETWEEN:
RASMIA RASHED
Applicant

AND:
PERPETUAL TRUSTEES VICTORIA LTD (ACN 004 027 258)
First Respondent

MATTHEW KILPATRICK
Second Respondent

JUDGE:

GRAY J

DATE OF ORDER:

31 AUGUST 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.Judgment be entered for the applicant against the second respondent in the sum of $40,000 together with interest to the date of judgment in the sum of $326.03.
2.The second respondent pay the applicant’s costs of the notice of motion filed on 17 August 2010.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 414 of 2009

BETWEEN:
RASMIA RASHED
Applicant

AND:
PERPETUAL TRUSTEES VICTORIA LTD (ACN 004 027 258)
First Respondent

MATTHEW KILPATRICK
Second Respondent

JUDGE:

GRAY J

DATE:

31 AUGUST 2010

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

By notice of motion filed on 17 August 2010, the applicant in this proceeding seeks judgment against the second respondent in the sum of $40,000, together with costs and other orders as appropriate, or ancillary or consequential to those orders. The proceeding was commenced by filing…

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: [2010] FCA 1046
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia was asked to consider a case involving a dispute between Rasmia Rashed, the applicant, and Perpetual Trustees Victoria Ltd (ACN 004 027 258) and Matthew Kilpatrick, the first and second respondents, respectively. The case centred around a mortgage loan that Rashed had entered into, which she claimed was done without her proper understanding due to her limited English proficiency and alleged undue influence by her son. Rashed sought judgment against Kilpatrick for the sum of $40,000, together with interest and costs, after he failed to fulfill his obligation under a settlement agreement.

The court needed to address several legal issues, including whether the service of the notice of motion was valid, whether the condition precedent for the settlement agreement had been met, and if the creditor could specify a particular method of payment to establish non-payment. The first issue was whether the service of the notice of motion was validly executed on Kilpatrick. The court found that Kilpatrick's solicitor had not complied with the requirement to give seven days’ notice before ceasing to act, meaning the solicitor remained on the record, and service could be made on him. The court also held that the evidence provided, which included placing the documents in the mail room of the applicant's solicitors, was sufficient to establish service.

Regarding the condition precedent, the court determined that the second respondent had an obligation to pay the settlement sum as per the agreement. The court found that the second respondent had not made any payment by the specified method and that no payment had been made at all. The court further ruled that the creditor could specify a particular method of payment to establish non-payment.

Finally, the court ordered that judgment be entered for Rashed against Kilpatrick for the sum of $40,000, together with interest to the date of judgment in the sum of $326.03, and that Kilpatrick pay Rashed's costs of the notice of motion. This decision underscores the importance of compliance with procedural rules and the need for clear evidence in establishing the terms of settlement and service of legal documents.

Orders