Scott v Bagshaw

Case [2000] FCA 816


FEDERAL COURT OF AUSTRALIA

Scott v Bagshaw [2000] FCA 816

BANKRUPTCY – jurisdiction – appeal – proceeding seeking to establish equitable charge on property – declaration sought that property charged in favour of party other than trustees of bankrupt – second respondent party not a bankrupt – whether proceeding arises in bankruptcy – whether leave to commence nunc pro tunc necessary.

JURISDICTION – appeal – proceeding seeking to establish equitable charge on property – claim not referrable to Bankruptcy Act – declaration sought that property charged in favour of party other than trustees of bankrupt – second respondent party not a bankrupt – whether proceeding arises in bankruptcy – whether leave to commence nunc pro tunc necessary.

Bankruptcy Act 1966 (Cth), ss 5, 27, 30, 58(1), 58(3)(b), 82, 90, 132
Real Property Act 1900 (NSW)
Conveyancing Act 1919 (NSW)
Property Law Act 1958 (Vic)
Transfer of Land Act 1958 (Vic)
Real Property Act 1886 (SA)
Law of Property Act 1936 (SA)
Limitation Act 1969 (NSW), s 14
Limitation of Actions Act 1936 (SA), s 35
Limitation of Actions Act 1958 (Vic), s 5
Federal Courts (State Jurisdiction) Act 1999 (NSW), s 11(2)
Federal Court Rules, O 4 r 3(1), O 10A r 5(1)(a), O 35 r 1.

Re Wakim; Ex parte McNally (1999) 73 ALJR 839 applied

Forshaw v Thompson (1992) 35 FCR 329 applied

Farrow Mortgage Services Pty Limited (in liq) v Abeyratne (1993) 47 FCR 208 referred to
Re Dingle; Westpac Banking Corporation v Worrell (1993) 47 FCR 478 referred to

Morris v Maroudas (1986) 12 FCR 346 referred to

Sutherland v Brien (1999) 149 FLR 321 distinguished

Fraser v Commissioner of Taxation (1996) 69 FCR 99 applied

JOHN JOSEPH SCOTT V LEITH GORDON BAGSHAW, JUDITH HAMPTON BAGSHAW AND PHILLIP GREGORY JEFFERSON & JAY ARSCOTT STEVENSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LEITH GORDON BAGSHAW
NG 684 OF 1994

DRUMMOND, R D NICHOLSON & KATZ JJ
19 JUNE 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 684 OF 1994

BETWEEN:

JOHN JOSEPH SCOTT
APPELLANT

AND:

LEITH GORDON BAGSHAW
FIRST RESPONDENT

JUDITH HAMPTON BAGSHAW
SECOND RESPONDENT

PHILLIP GREGORY JEFFERSON & JAY ARSCOTT STEVENSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LEITH GORDON BAGSHAW
THIRD RESPONDENT

JUDGES:

DRUMMOND, R D NICHOLSON & KATZ JJ

DATE OF ORDER:

19 JUNE 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Leave to appeal, if required, be granted.

2.The appeal be allowed.

3.The order made on 26 November 1999 be set aside.

4.Leave to commence the proceeding be granted nunc pro tunc.

5.The application be remitted to the primary judge for determination on the merits.

6.Costs be reserved for written submissions on behalf of the appellant within seven days, with a further seven days to the respondents and a right of reply within three days.

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…

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AGLC
Scott v Bagshaw [2000] FCA 816
Case
[2000] FCA 816
Decision Date

CaseChat Overview and Summary

In Scott v Bagshaw, the appeal was brought by the appellant against the decision of the primary judge, with the third respondents also participating in the proceedings. The central dispute involved the handling of jurisdiction by the primary judge and the procedural conduct of the third respondents during a motion for leave to commence. The case was heard in the relevant appellate court, which was tasked with reviewing the lower court's decisions.

The legal issues that the court needed to decide focused on the procedural correctness of the primary judge's handling of jurisdiction and the appropriateness of the third respondents' conduct during the motion. Specifically, the court had to consider whether the primary judge was correct in dismissing the motion for leave to commence and whether the third respondents' passive conduct was justified. Furthermore, the court had to assess whether the appeal should proceed and, if so, what orders should be made regarding costs and the substantive merits of the case.

The court found that the primary judge's handling of jurisdiction was flawed, and the third respondents' passive conduct during the motion was inappropriate. Consequently, the court allowed the appeal, set aside the previous order staying the proceedings, and granted leave to commence the proceeding nunc pro tunc. The court also directed that the matter be remitted to the primary judge for a determination on the merits. Additionally, the court reserved the issue of costs, providing an opportunity for the parties to file written submissions on the costs of both the appeal and the primary hearing. This decision aimed to ensure that the parties had a fair opportunity to address the financial implications of the proceedings.

Orders

Orders of the court

1. Leave to appeal, if required, be granted.

2. The appeal be allowed.

3. The order made on 26 November 1999 be set aside.

4. Leave to commence the proceeding be granted nunc pro tunc.

5. The application be remitted to the primary judge for determination on the merits.

6. Costs be reserved for written submissions on behalf of the appellant within seven days, with a further seven days to the respondents and a right of reply within three days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There are two features of this appeal and its conduct that may reflect in costs. They are the way in which counsel for the appellant addressed the issue of jurisdiction before the primary judge and the conduct of counsel for the third respondents in sitting by while the motion for leave to commence was dismissed by the primary judge. Those features require that an opportunity should be given for submissions on the appropriate way in which the Court should make orders for costs of the hearing of the appeal and of the hearing before the primary judge.Conclusion For the reasons given above, we consider that leave to appeal, if required, should be granted; the appeal should be allowed; the order staying the proceeding in this Court should be set aside; leave to commence the proceeding should be granted nunc pro tunc; the matter should be remitted to the primary judge for determination on the merits; and opportunity should be provided for the parties to file written submissions on the costs of the appeal and the primary hearing on the issue raised in the appeal.

Ratio Decidendi

Legal Principle Established

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