Rogers v Asset Loan Co Pty Ltd - [2006] FCA 434

FEDERAL COURT OF AUSTRALIA
Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434
BANKRUPTCY – application by an undischarged bankrupt for interlocutory relief – consideration of the Applicant’s standing to seek interlocutory relief in aid of final relief as formulated – consideration of previous proceedings, scope of the action and the relevant provisions of the Bankruptcy Act – sections 5, 58(1)(a) and (b), 60(2), 60(3), 116(1)(a) and (b) and 116(2)(g) – consideration of the test for determining the scope of the phrase “wrong done to the bankrupt” for the purposes of the Bankruptcy Act 1966 (Cth).
Bankruptcy Act 1966 (Cth), sections 5, 58(1)(a) and (b), 60(2), 60(3), 116(1)(a) and (b) and 116(2)(g)
Trade Practices Act 1974 (Cth), sections 51AC, 52, 60, 87(1)
Property Law Act 1974 (Qld), section 84
Rogers Trading as Living Space Building v Dale & Meyers Timber Trade Centre Pty Ltd [2005] FCA 862, cited
Rogers v Dale & Meyers Timber Trading Centre Pty Ltd [2005] FCA 1891, cited
Cummings v Claremont Petroleum NL (1986) 185 CLR 123, applied
Cirillo v Citicorp Australia Ltd [2004] SASC 293, applied
Daemar v Industrial Commission of New South Wales (1988) 79 ALR 591, cited and quoted
Cox v Journeaux (No. 2) (1935) 52 CLR 713, applied and quoted
Faulkner v Bluett (1981) 52 FLR 115, applied and quoted
Re Wakim; Ex Parte McNally & Anor (1999) 198 CLR 511, applied
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] 208 CLR 199, applied and quoted
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, applied and quoted
Other References
Chapters on Equity in New South Wales, 6^th Edition (1947), Sir Frederick Jordan, quoted
ROGERS v ASSET LOAN CO PTY LTD & ORS
QUD130 OF 2006
GREENWOOD J
20 APRIL 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD130 OF 2006

BETWEEN:

GREGORY ERIC ROGERS
APPLICANT

AND:

ASSET LOAN CO PTY LTD (ACN 107 746 798)
FIRST RESPONDENT

ASSET LOAN COMPANY PTY LTD (ACN 101 054 997)
SECOND RESPONDENT

PAUL ALEXANDER SYDNEY HARE
THIRD RESPONDENT

RUSSELL FRANK PERCIVAL
FOURTH RESPONDENT

JUDITH LORRAINE HARE (As Trustee for the Hare Property Trust)
FIFTH RESPONDENT

RIVERSTONE NOMINEES PTY LTD (ACN 063 086 546) (as Trustee for the Percival Family Trust No. 2)
SIXTH RESPONDENT

JUDGE:

GREENWOOD J

DATE OF ORDER:

20 APRIL 2006

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application for interlocutory relief is dismissed.

2.Costs of and incidental to the application for interlocutory relief are reserved.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD130 OF 2006

BETWEEN:

GREGORY ERIC ROGERS
APPLICANT

AND:

ASSET LOAN CO PTY LTD (ACN 107 746 798)
FIRST RESPONDENT

ASSET LOAN COMPANY PTY LTD (ACN 101 054 997)
SECOND RESPONDENT

PAUL ALEXANDER SYDNEY HARE
THIRD RESPONDENT

RUSSELL FRANK PERCIVAL
FOURTH RESPONDENT

JUDITH LORRAINE HARE (As Trustee for the Hare Property Trust)
FIFTH RESPONDENT

RIVERSTONE NOMINEES PTY LTD (ACN 063 086 546) (as Trustee for…

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: [2006] FCA 434
Decision Date: 20 APRIL 2006

CaseChat Overview and Summary

Rogers v Asset Loan Co Pty Ltd involved a dispute concerning claims made by Mr Rogers, the bankrupt, against Asset Loan Co Pty Ltd. The nature of the dispute was focused on whether Mr Rogers had the standing to maintain claims concerning various properties and contractual agreements after his bankruptcy, or whether the claims should vest in his trustee. The case was heard in the Federal Court of Australia.

The legal issues that the court had to decide included whether Mr Rogers, as a bankrupt, could maintain claims concerning his legal and beneficial interests in land and related rights, powers, and capacities. This was particularly pertinent given the provisions of the Bankruptcy Act and the Trade Practices Act 1974 (Cth). Furthermore, the court had to determine whether these claims fell within the exemption of section 116(2)(g) of the Bankruptcy Act, which allows a bankrupt to maintain proceedings concerning wrongs done to them personally.

The court found that the claims made by Mr Rogers involved interests in property, and thus, according to the statutory framework, these claims should vest in his trustee. The court emphasized that the nature of the claims, seeking orders such as declarations of void contracts, variations of security documents, property transfers, and prevention of enforcement of contractual rights, were all related to property interests. Therefore, they could not be maintained by Mr Rogers personally but had to be pursued by his trustee. The court further noted that these claims did not fall within the exemption for personal wrongs, as they were inextricably linked to property interests rather than personal injury or wrongs to Mr Rogers' person or character.

In light of the findings, the application for interlocutory relief was dismissed. The court also reserved the costs of and incidental to the application for interlocutory relief. The final orders of the court were to dismiss the application for interlocutory relief and to reserve costs.

Orders

Orders of the court

1. The application for interlocutory relief is dismissed.

2. Costs of and incidental to the application for interlocutory relief are reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GREENWOOD J

The Respondents say that to the extent that such a claim, however it might be formulated, is one with respect to a legal or beneficial interest of the bankrupt in land or involves any right, power or capacity in relation to such an interest, the claim vests in the trustee. Conclusions A consideration of each of the claims for final relief demonstrates that claims 1, 2, 4, 5, 6, 7, 8, 9 and 10 [28] all involve a claim for relief with respect to the property of the bankrupt. Each claim for final relief involves a claim for an order based upon conduct alleged to contravene the Trade Practices Act 1974 (Cth) which is the subject of a claim for a remedial order with respect to an interest of the bankrupt in relation to property so defined by the Bankruptcy Act. Specifically, the orders, in effect, seek declarations that contracts and agreements are void, that security documents concerning particular properties are void, that mortgages and contracts ought to be varied, particular properties ought to be transferred to nominated parties, that proceeds of sale be attached, that orders ought to be made preventing enforcement of contractual rights and entitlements etc. The only party with standing to assert an entitlement to such remedial orders with respect to that subject matter is the trustee of Mr Rogers. Moreover, the claims for interlocutory relief reflect precisely the same difficulty. As to the question of whether any of these claims either for final or interlocutory relief fall within the exemption of s116(2)(g) of the Bankruptcy Act thus entitling Mr Rogers to maintain a claim and more particularly a claim for an interlocutory injunction to restrain an exercise of a power of sale by a secured creditor in connection with the property at 13 or 15 Moreton Street, Toogoom, the position seems to be this. In Daemar v Industrial Commission of New South Wales (1988) 79 ALR 591, Kirby P at page 601 made the following observation concerning the phrase “wrong[s] done to the bankrupt”:“It is understandable that a person unversed in the principles of statutory construction and unaware of legal authority on the meaning of [the relevant phrase] should have taken the words ‘wrong done to the bankrupt’ in isolation and concluded as the claimant did about their meaning. However, the words cannot be taken in isolation. They must, in accordance with the ordinary cannons of construction, be read in the context in which they appear.” And at page 602,“The exemption [relating to proceedings concerning a wrong done to the bankrupt] is limited to those cases where it has been considered appropriate to sever the personal interests of the person subsequently made bankrupt from his property and to reserve to him the prosecution of and benefits derived from such litigation as not being legitimately entitlements of the creditors.” In Cox v Journeaux (No. 2) (1935) 52 CLR 713 at 721, Sir Owen Dixon, explained the test to be applied to determine whether the character of the claim is one properly falling within the exemption. His Honour said this,“The plaintiff says that he himself is entitled to prosecute [the claim] under the proviso as an action for personal injury or wrong done to himself. The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property (Wilson v United Counties Bank Ltd (1920) A.C. 102 at pp111 and 128 – 133).”

Ratio Decidendi

Legal Principle Established

Established by: GREENWOOD J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD130 OF 2006

BETWEEN:	GREGORY ERIC ROGERS APPLICANT
AND:	ASSET LOAN CO PTY LTD (ACN 107 746 798) FIRST RESPONDENT ASSET LOAN COMPANY PTY LTD (ACN 101 054 997) SECOND RESPONDENT PAUL ALEXANDER SYDNEY HARE THIRD RESPONDENT RUSSELL FRANK PERCIVAL FOURTH RESPONDENT JUDITH LORRAINE HARE (As Trustee for the Hare Property Trust) FIFTH RESPONDENT RIVERSTONE NOMINEES PTY LTD (ACN 063 086 546) (as Trustee for the Percival Family Trust No. 2) SIXTH RESPONDENT
JUDGE:	GREENWOOD J
DATE OF ORDER:	20 APRIL 2006
WHERE MADE:	BRISBANE