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.
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…
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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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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
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.