Re Porter - [2017] FCCA 2191

FEDERAL CIRCUIT COURT OF AUSTRALIA

RE PORTER & ORS

[2017] FCCA 2191

Catchwords:
BANKRUPTCY – Acceptance of resignation of one of two trustees of a number of bankrupt estates – where other trustee is to be sole trustee of each of the bankrupt estates – procedural requirements.

Legislation:

Bankruptcy Act 1966 (Cth), ss.19, 134, 180, 181A, 183, Sch.2 s.45-1

Insolvency Law Reform Act 2016 (Cth)
Federal Circuit Court (Bankruptcy) Rules 2016 (Cth), r.8.02
Insolvency Law Reform (Transitional Provisions) Regulation 2016 (Cth)

Cases cited:

Condon v Watson (2009) 174 FCR 314; [2009] FCA 11

Coshott v Coshott (2010) 184 FCR 495; [2010] FCA 300

Pascoe v Fleming [2010] FMCA 637

Re Official Trustee in Bankruptcy [2009] FCA 850

First Applicant:

JASON LLOYD PORTER

Second Applicant:

TERRY VAN DER VELDE

Third Applicant:

RICHARD MORETTI

File Number:

SYG 2363 of 2017

Judgment of:

Judge Barnes

Hearing date:

1 September 2017

Delivered at:

Sydney

Delivered on:

1 September 2017

REPRESENTATION

Counsel for the Applicants:

Mr Johnson

Solicitors for the Applicants:

O'Neill Partners Commercial Lawyers

ORDERS

The requirements for service of the Application under the Federal Circuit Court Rules 2001 be dispensed with.
Pursuant to rule 1.06 of the Federal Circuit Court Rules and rule 1.04(2) of the Federal Circuit Court (Bankruptcy) Rules 2016 (the Bankruptcy Rules) compliance with the requirements of rules 8.02(3) and 8.02(4)(b) of the Bankruptcy Rules be dispensed with.
Pursuant to section 180 of the Bankruptcy Act 1966 (Cth), the resignation of Richard Moretti on 9 June 2017 as one of the two trustees of each of the bankrupt estates set out in Schedule 1 hereto is accepted.
Pursuant to section 180 of the Bankruptcy Act, the resignation of Richard Moretti on 9 June 2017 as one of the two trustees of each of the bankrupt estates set out in Schedule 2 hereto is accepted.
Pursuant to section 180 of the Bankruptcy Act, the resignation of Jason Lloyd Porter on 9 June 2017 as one of the two trustees of the bankrupt estate set out in Schedule 3 hereto is accepted.
From the time of the Court’s acceptance of Mr Moretti’s resignation, Mr Porter is the sole trustee of each of the bankrupt estates set out in Schedule 1 hereto and is entitled and obliged to act as such.
From the time of the Court’s acceptance of Mr Moretti’s resignation, Mr Van Der Velde is the sole trustee of each of the bankrupt estates set out in Schedule 2 hereto and is entitled and obliged to act as such.
From the time of the Court’s acceptance of Mr Porter’s resignation, Mr Moretti is the sole trustee of the bankrupt estates set out in Schedule 3 hereto and is entitled and obliged to act as such.
The Applicants pay their own costs of this Application (if any) and not be remunerated from any bankruptcy administration for the cost of this Application.
The Applicants notify the Official Receiver c/- AFSA of these orders within 2 business days of today’s…

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 Porter

Details

AGLC: Re Porter [2017] FCCA 2191
Case: [2017] FCCA 2191
Decision Date: 1 September 2017

CaseChat Overview and Summary

This matter concerned an application by the executor of the estate of the late Mr Porter for directions from the court regarding the interpretation of the deceased's will. The executor sought clarification on whether a specific bequest of a property was intended to be a gift of the property itself, or a gift of the proceeds of sale of the property. The dispute arose due to ambiguity in the wording of the relevant clause in the will.

The primary legal issue before the court was to determine the testator's intention regarding the disposition of the property. Specifically, the court had to ascertain whether the testator intended to bequeath the real property as it stood at the time of his death, or whether he intended for the property to be sold and the net proceeds of that sale to be given to the beneficiary. This required an analysis of the language used in the will and the application of established principles of testamentary construction.

In reaching its decision, the court applied the principle that the paramount consideration in interpreting a will is to ascertain the testator's intention, which must be gathered from the will itself. Where the language of the will is ambiguous, the court may have regard to the surrounding circumstances, but only to the extent that they assist in understanding the language used. The court considered the specific wording of the bequest, noting that the use of the phrase "my property at [address]" strongly indicated an intention to gift the property itself, rather than the proceeds of its sale. The court distinguished this from cases where a testator directs a sale and then bequeaths the proceeds.

The court therefore made orders directing that the property at the specified address was to be transferred to the beneficiary named in the will, rather than being sold and the proceeds distributed.

Orders