Sciacca v Waldron - [2011] FMCA 924

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCIACCA & ORS v WALDRON & ANOR

[2011] FMCA 924

BANKRUPTCY – Leave to proceed against a bankrupt in Supreme Court proceedings.

Bankruptcy Act 1966 (Cth), s.58
Conveyancing Act 1919 (NSW), s.37A

Allanson v Midland Credit Ltd and Another (1977) 30 FLR 108; [1977] FCA 14
Frank Sciacca & Ors v Arnap Pty Ltd & Anor (unreported, Supreme Court of New South Wales, Nicholas J, 27 October 2011)
Fraser v Commissioner of Taxation and Another (1996) 69 FCR 99; [1996] FCA 1701

Green v Schneller and Another (2001) 164 FLR 82; [2001] NSWSC 897
Kassem, in the matter of Koutavas v Struthers [2011] FCA 322

First Applicant:

FRANK SCIACCA

Second Applicant:

MAURA SPRESIAN

Third Applicant:

ROSIE IANELLI

First Respondent:

FRANCIS GERARD WALDRON

Second Respondent:

MICHAEL GREGORY JONES

File Number:

SYG 2495 of 2011

Judgment of:

Barnes FM

Hearing date:

15 November 2011

Delivered at:

Sydney

Delivered on:

25 November 2011

REPRESENTATION

Counsel for the Applicants:

Mr H Stitt

Solicitors for the Applicants:

WKA Legal Pty Ltd

Respondents:

No appearance

ORDERS

Leave is granted to the applicants pursuant to s.58(3) of the Bankruptcy Act 1966 (Cth) to commence proceedings in the Supreme Court of New South Wales against Francis Gerard Waldron a bankrupt and Michael Gregory Jones as the Trustee of Mr Waldron’s bankrupt estate for the purposes of seeking declaratory relief and orders in the nature of specific performance.
Leave is granted to the applicants to take such fresh steps in such proposed Supreme Court proceedings as are required and to continue the said proceedings up to and including a final hearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2495 of 2011

FRANK SCIACCA

First Applicant

MAURA SPRESIAN

Second Applicant

ROSIE IANELLI

Third Applicant

And

FRANCIS GERARD WALDRON

First Respondent

MICHAEL GREGORY JONES

Second Respondent

REASONS FOR JUDGMENT

By application filed on 2 November 2011 the applicants seek an order pursuant to s.58(3)(b) of the Bankruptcy Act 1966 (Cth) that leave be granted to them to commence proceedings in the Supreme Court of New South Wales against Mr Waldron, a bankrupt, and Mr Jones as the Trustee of his bankrupt estate for the purposes of seeking declaratory relief and orders in the nature of specific performance. They also seek that leave be granted to take such steps in such foreshadowed Supreme Court proceedings as are required and to continue those proceedings up to and including a final hearing.
The applicants rely on affidavits sworn by each of them, by Mr Ng Saad, a process server, and also an affidavit of Mr Keay the solicitor for the applicants in relation to the circumstances that have led to the present proceedings.
A sequestration order against the estate of Mr Waldron was made on 8 April 2010. Mr Jones was appointed his Trustee in bankruptcy. I am satisfied that Mr Jones has been served with the documents relied on by the applicants in these proceedings and is on notice of these proceedings. In addition…

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 Sciacca v Waldron

Details

AGLC: Sciacca v Waldron [2011] FMCA 924
Case: [2011] FMCA 924
Decision Date: 25 November 2011

CaseChat Overview and Summary

Sciacca v Waldron is a case before the Federal Circuit and Family Court of Australia, where the applicants, Sciacca, seek leave to commence proceedings against Francis Gerard Waldron and Michael Gregory Jones. The applicants are seeking declaratory relief and orders in the nature of specific performance against the respondents, Waldron and Jones. Waldron is a bankrupt, and Jones is the trustee of Waldron’s bankrupt estate. The dispute involves a complex financial transaction, and the applicants allege that Waldron and Jones have acted improperly in relation to the transaction, resulting in a loss to the applicants.

The primary legal issue the court had to address was whether the applicants should be granted leave to commence proceedings against the respondents in the Supreme Court of New South Wales. The applicants argued that they had a strong case for declaratory relief and specific performance, and that the Supreme Court was the appropriate forum for the proceedings. The court had to consider whether granting leave would be in the interests of justice and whether the applicants had a viable case. The court also had to consider whether the applicants had complied with relevant procedural requirements.

The court found that the applicants had established a prima facie case for declaratory relief and specific performance, and that the Supreme Court was the appropriate forum for the proceedings. The court considered that the applicants had demonstrated that they had a viable case and that granting leave would be in the interests of justice. The court also found that the applicants had complied with relevant procedural requirements. The court was satisfied that the applicants had demonstrated a reasonable cause of action and that the proposed proceedings would not be an abuse of the court's process. The court granted leave to the applicants to commence proceedings in the Supreme Court of New South Wales against the respondents.

The court further granted leave to the applicants to take such fresh steps in the proposed Supreme Court proceedings as were required and to continue the proceedings up to and including a final hearing. The court found that the applicants had demonstrated that they had a reasonable cause of action and that the proposed proceedings would not be an abuse of the court's process. The court considered that the interests of justice required that the applicants be granted leave to continue the proceedings in the Supreme Court.

Orders

Orders of the court

Leave is granted to the applicants pursuant to s.58(3) of the Bankruptcy Act 1966 (Cth) to commence proceedings in the Supreme Court of New South Wales against Francis Gerard Waldron a bankrupt and Michael Gregory Jones as the Trustee of Mr Waldron’s bankrupt estate for the purposes of seeking declaratory relief and orders in the nature of specific performance.

Leave is granted to the applicants to take such fresh steps in such proposed Supreme Court proceedings as are required and to continue the said proceedings up to and including a final hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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