Scott v Bagshaw - [1999] FCA 674

FEDERAL COURT OF AUSTRALIA
Scott v Bagshaw [1999] FCA 674
JOHN JOSEPH SCOTT v LEITH GORDON BAGSHAW AND JUDITH HAMPTON BAGSHAW AND PHILLIP GREGORY JEFFERSON AND JAY ARSCOTT STEVENSON AS TRUSTEES OF THE BANKRUPT ESTATE OF LEITH GORDON BAGSHAW
NG 1061 OF 1998
RYAN, MOORE AND MARSHALL JJ
21 MAY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1061 OF 1998

ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL
COURT OF AUSTRALIA

BETWEEN:

JOHN JOSEPH SCOTT
Appellant

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 Respondent

JUDGES:

RYAN, MOORE AND MARSHALL JJ

DATE OF ORDER:

21 MAY 1999

WHERE MADE:

SYDNEY

MINUTES OF ORDER
THE COURT ORDERS:
1.That the appeal be allowed.

2.That the orders of Whitlam J of 21 September 1998 be set aside.

3.That the application be remitted to Whitlam J to determine such of the issues between the parties as may be necessary, in the light of the reasons of the Full Court published this day, to dispose of the action.

4.That the costs of the proceedings before Whitlam J abide the determination by him of the issues referred to in paragraph 3 of this Order.

5.That the respondents pay the appellant’s costs of the appeal, such costs to be taxed in default of agreement.
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 1061 OF 1998

ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL
COURT OF AUSTRALIA

BETWEEN:

JOHN JOSEPH SCOTT
Appellant

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 Respondent

JUDGES:

RYAN, MOORE AND MARSHALL JJ

DATE:

21 MAY 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT
THE COURT

This is an appeal from a judgment of a single Judge of the Court dismissing an application whereby the applicant sought a declaration that he was entitled to an equitable charge over two parcels of land, one at Terrigal in New South Wales (“the Terrigal land”) and the other at Mildura in Victoria (“the Mildura land”) and over the proceeds from the sale of another parcel of land at Para Wirra in South Australia (“the Para Wirra land”). The first and second respondents (“the Bagshaws”) are the registered proprietors of the Terrigal land and the Mildura land and the first respondent, Mr Bagshaw, who is presently bankrupt, was formerly the registered proprietor of the Para Wirra land. The third respondents (“the Trustees”) are the Trustees of Mr Bagshaw’s bankrupt estate.
The applicant’s amended statement of claim contained these paragraphs:
“1.The applicant is the trustee of the Scott Family Trust.
…
3.By an agreement made on or about 31 December 1985 Leith…

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: [1999] FCA 674
Decision Date: 21 MAY 1999

CaseChat Overview and Summary

Scott v Bagshaw is an appeal concerning the enforceability of an equitable charge over two parcels of land. The appeal was brought by the applicant, Scott, against the first respondent, Leith Gordon Bagshaw, the second respondent, Judith Hampton Bagshaw, and the third respondent, the Trustees of the bankrupt estate of Leith Gordon Bagshaw. The appeal was heard by Ryan, Moore, and Marshall JJ in the Federal Court of Australia, New South Wales District Registry. The appeal was allowed and the orders made by Whitlam J were set aside. The application was remitted to Whitlam J to determine such of the issues between the parties as may be necessary, in the light of the reasons of the Full Court published this day, to dispose of the action. The respondents paid the appellant’s costs of the appeal.The legal issues in this case were whether the appellant had established that he was a party to a loan agreement with the respondents, and whether the appellant had the right to enforce repayment of the loan. The court found that the evidence supported a conclusion that the respondents had agreed to borrow moneys from Scott and to charge their various parcels of land with repayment of the loan. The court also found that the appellant had the right to enforce repayment of the loan as the nominated lender. The court rejected the primary Judge’s analogy between the present case and a loan advanced by payment of a bank cheque where the bank manager who happened to sign the cheque could not be allowed to sue for repayment of the loan. The court held that in the present case, there was a considerable body of evidence, none of it contradicted by the respondents, that Scott or the “Scott Family Trust” had been nominated as the lender and had been acknowledged as such by the respondents. The court also held that the appellant’s role in instituting this proceeding did not smack of overt maintenance. The court allowed the appeal, set aside the order below, and remitted the application to the learned primary Judge to determine such of the remaining issues as may be necessary, in the light of the reasons of the Full Court published this day, to dispose of the action.

Orders