Re Bond, a Ex parte Ramsay, R.E. - [1993] FCA 255

155 , 1443

JUDGMENT NO. o. . .oo . . *oe*m*mmeaa.

IN THE 'FEDERAL COURT OF AUSTRALIA )
GENERAL 'DIVISION )
BANKRUPTCY DISTRICT OF THE

) No NB 1071 OF 1992
STATE OF NEW SOUTH WALES j

RE : ALAN BOND
EX PARTE: ROBERT EASTAUGH RAMSAY

(The trustee of the property of

Alan Bond, a bankrupt)

Applicant
DELORES JEAN CABOCHE
First Respondent

PETER NOMMEL GLEESON
Second Respondent

JOHN BOND

Third Respondent

CRAIG BOND

Fourth Respondent
SUSANNE BOND
Fifth Respondent

JODY BOND

Sixth Respondent

EILEEN BOND

Seventh Respondent

ALAN BOND

Eighth Responden

CORAM : HILL J

PLACE : SYDNEY 2 9 APR 1993

under a superannuation fund to Mr Bond, became property vested the question whether a benefit, otherwise apparently payable
in Mr Ramsay, the trustee of Mr Bond's bankrupt estate. I dealt not only with issues of liability but also with the question of the costs to that point of time and stood the matter over to a date to be fixed, on which date I directed that counsel for Mr Ramsay should bring in a draft of short minutes of order to give effect to my reasons.
Although the orders made by me contemplated the making of short minutes of order to give effect to the judgment, probably in the form of declarations, I ultimately took the view that it was not appropriate for those declarations to be made, pending the final argument between the parties on the question of preserved benefits under the Regulations.
When the matter resumed for hearing this morning,
counsel for the first and second respondents sought leave to
amend the defence of the first and second respondents by

the time of execution of the deed dated 5 October 1990, and of adding two new paragraphs. These paragraphs allege that at the deed dated 19 July 1991, there had been an agreement reached between the trustees of Mr Bond's superannuation fund and Mr Bond, to the effect that any benefits that might then have been payable to Mr Bond under cls.9 or 14 of the Trust Deed should be retained by the trustees and dealt with by them as if Mr Bond had neither retired from the employment of an employer nor ceased to be in the employment of an employer.
The particulars to each of the proposed new clauses state that the agreements pleaded are to be inferred from various documentary sources, most of which are in evidence.
I t seems that perhaps one letter referred to in the
particulars has not yet been tendered. The question is whether in these circumstances the amendments should be permitted to be made, at what is clearly a very late stage, in the discretion of the Court.

Counsel for the first and second respondents
referred me to the decision of Barton J in Shannon v
(1912) 15 CLR 257, particularly at 260-1 where his Honour
referred to Tildesley v Harper (1878) 10 Ch.D 393 at 396 and
Cropper v Smith (1884) 26 Ch.D 700. In the…

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 Re Bond, a Ex parte Ramsay, R.E.

Details

AGLC: Re Bond, a Ex parte Ramsay, R.E. [1993] FCA 255
Case: [1993] FCA 255
Decision Date: 31 Mar 1993

CaseChat Overview and Summary

The Federal Court of Australia, General Division, heard a case brought by Robert Eastaugh Ramsay, the trustee of Alan Bond's bankrupt estate, against Delores Jean Caboche, Peter Nommel Gleeson, and others. The case, titled Re Bond, Ex parte Ramsay, centred around a superannuation fund established for Mr Bond. The primary issue was whether a benefit from the fund, which would have been payable to Mr Bond, was instead vested in Mr Ramsay due to Bond's bankruptcy. The case involved complex legal questions regarding the interpretation of superannuation regulations and the rights of trustees versus creditors in bankruptcy cases.

The court addressed the legal issues surrounding the applicability of the Occupational Superannuation Standards Regulations on the vesting of benefits in the trustee of a bankrupt's estate. The case also examined the discretion of the court in permitting amendments to pleadings at a late stage in the proceedings. The respondents sought to amend their defence to include new paragraphs alleging an agreement between the trustees of the superannuation fund and Mr Bond, which would affect the distribution of the benefits.

In his judgment, Justice Hill considered the principles of finality in litigation and the public interest in resolving disputes efficiently. He examined the authority in Shannon v. Barton and the competing interests in allowing amendments to pleadings. The judge concluded that allowing the amendment at such a late stage would be unjust to the applicant and contrary to the public interest in finality of litigation. Therefore, the court refused leave to amend the pleadings, dismissing the motion but making no order as to costs.

Orders