PHILLIP GREGORY JEFFERSON and JAY ARSCOTT STEVENSON as Trustees of the Bankrupt Estate of Leith Gordon Bagshaw THIRD RESPONDENTS
JUDGE:
WHITLAM J
DATE OF ORDER:
20 MARCH 2002
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The applicant bring in short minutes of order to give effect to these reasons for judgment.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 684 of 1994
BETWEEN:
JOHN JOSEPH SCOTT APPLICANT
AND:
LEITH GORDON BAGSHAW FIRST RESPONDENT
JUDITH HAMPTON BAGSHAW SECOND RESPONDENT
PHILLIP GREGORY JEFFERSON and JAY ARSCOTT STEVENSON as Trustees of the Bankrupt Estate of Leith Gordon Bagshaw THIRD RESPONDENTS
JUDGE:
WHITLAM J
DATE:
20 MARCH 2002
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant, John Scott, seeks a declaration that he is entitled to an equitable charge over land located at Terrigal in New South Wales and at Mildura in Victoria and over the proceeds of the sale of land located at Para Wirra in South Australia. The first and second respondents, Leith Bagshaw and his wife Judy Bagshaw, are the registered proprietors of the land at Terrigal and Mildura. Mr Bagshaw was the registered proprietor of the land at Para Wirra. He is a bankrupt, and the third respondents are the trustees of his bankrupt estate. This proceeding was remitted by a Full Court for my determination of such issues as may be necessary in the light of that Court’s reasons.
Loans were made to the Bagshaws to assist with the purchase of the land at Terrigal and Mildura. These loans were arranged by one Ken Livingstone and made by him in
Mr Scott’s name. Mr Livingstone was also Mr Bagshaw’s accountant. The same solicitor was retained in respect of these transactions by the Bagshaws and by Mr Livingstone on behalf of Mr Scott. His name was Clive Austin. Mr Austin’s files are in evidence, and he also gave evidence. From that evidence the following key events may be uncontroversially chronicled.
The Terrigal property was a residential flat at 39 Beaufort Road. Its purchase price was $65,000 and Mr and Mrs Bagshaw agreed to buy it when contracts were exchanged on 30 July 1985. One week later, on 7 August 1985, Mr Bagshaw was notified that a planning consent sought by him had been given for development of four townhouses on a block of land at 2-4 Canyon Road, Baulkham Hills in New South Wales. Soon afterwards, on
16 August 1985, Mr Bagshaw offered to buy industrial land at 1110-1112 Benetook Avenue, Mildura for $175,000 on behalf of a purchaser…
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
AGLC
Scott v Bagshaw [2002] FCA 276
Case
[2002] FCA 276
Decision Date
CaseChat Overview and Summary
The matter before the court was a dispute between Scott and Bagshaw, with Scott seeking to enforce an order made by the Federal Magistrates Court. The Federal Court was required to determine whether the order made by the Federal Magistrates Court was enforceable and, if so, what steps should be taken to enforce it. The court heard arguments from both parties and considered the relevant legal principles.
The central issue before the court was whether the Federal Magistrates Court had the authority to make the order in question and whether it was enforceable. The court considered the relevant statutory provisions and case law on the issue of enforceability of orders made by the Federal Magistrates Court. The court also considered the arguments of both parties on the issue of whether the order was valid and enforceable.
The court held that the Federal Magistrates Court did have the authority to make the order in question and that it was enforceable. The court noted that the order was made under the correct statutory provisions and that there were no grounds for setting it aside. The court also found that the order was clear and unambiguous and that there were no jurisdictional errors that would render it unenforceable. The court further found that the applicant had established a prima facie case for enforcement of the order and that there were no grounds for refusing enforcement.
The court ordered that the applicant bring in short minutes of order to give effect to these reasons for judgment. This means that the court has determined that the order made by the Federal Magistrates Court is enforceable and that steps should be taken to enforce it. The court has not set aside the order or made any other orders in relation to the dispute between the parties.
Orders
Orders of the court
1. The applicant bring in short minutes of order to give effect to these reasons for judgment.