Secure Parking (WA) Pty Ltd v Francis - [2010] FMCA 191

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SECURE PARKING (WA) PTY LTD v FRANCIS & ANOR

[2010] FMCA 191

BANKRUPTCY – Leave to commence and continue proceedings in Supreme Court of Western Australia – claim against bankrupt solicitor – power to make retrospective grant – factors for consideration in determining whether leave to be granted – whether leave ought to be granted on conditions.

PRACTICE AND PROCEDURE – Grant of leave to a non-party to be heard – insurer of bankrupt’s legal practice.

Bankruptcy Act 1966 (Cth), ss.27(1) and 58(3)(b)
Federal Magistrates Court Rules 2001 (Cth), r.1.06
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) r.2.04
Rules of the Supreme Court 1971 (WA) O.7, r.1
Trade Practices Act 1974 (Cth), s.52

Cordes v Dr Peter Ironside Pty Ltd & Ors (2009) 7 ABC(NS) 297; [2009] QCA 302
Kobylinski & Anor v Walker [2008] FMCA 89
Lovell v Penkin (A Bankrupt) & Anor (2008) 101 ALD 335; [2008] FCA 637
Meriton Apartments Pty Ltd & Anor v Industrial Court of New South Wales & Anor (2008) 171 FCR 380; [2008] FCAFC 172
Secure Parking (WA) Pty Ltd v Wilson & Anor [2005] WASC 264
Secure Parking (WA) Pty Ltd v Wilson (2008) 38 WAR 350; [2008] WASCA 268
Secure Parking (WA) Pty Ltd v Wilson (No. 2) [2009] WASCA 78
Singh v Official Trustee in Bankruptcy (2007) 5 ABC(NS) 607; [2007] FMCA 1367

Applicant:

SECURE PARKING (WA) PTY LTD

First Respondent:

IAN CHARLES FRANCIS AS TRUSTEE OF THE BANKRUPT ESTATE OF MICHAEL JOHN MCPHEE

Second Respondent:

MICHAEL JOHN MCPHEE

Intervenor:

LAW MUTUAL (WA)

File Number:

PEG 6 of 2010

Judgment of:

Lucev FM

Hearing date:

18 March 2010

Date of Last Submission:

18 March 2010

Delivered at:

Perth

Delivered on:

26 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr G R Hancy

Solicitors for the Applicant:

Talbot Olivier Lawyers

Counsel for the First Respondent:

No appearance (a Notice of Intention to Abide by the judgment of the Court was filed)

Solicitors for the First Respondent:

Carles Solicitors

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Pynt & Partners

Counsel for the Intervenor:

Mr S R Merrick

Solicitors for the Intervenor:

Pynt & Partners

ORDERS

The applicant have leave under s.58(3)(b) of the Bankruptcy Act 1966 (Cth):
(a)nunc pro tunc, to commence, and take such steps as have already been taken, in proceeding CIV 1164 of 2009 in the Supreme Court of Western Australia (“the Supreme Court Proceedings”); and
(b)to take any fresh steps in the Supreme Court Proceedings.
The first respondent have liberty to apply in relation to the imposition of conditions upon the grant of leave under order (1).
There be liberty to apply with respect to the costs of this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 6 of 2010

SECURE PARKING (WA) PTY LTD

Applicant

And

IAN CHARLES FRANCIS AS TRUSTEE OF THE BANKRUPT ESTATE OF MICHAEL JOHN MCPHEE

First Respondent

MICHAEL JOHN MCPHEE

Second Respondent

REASONS FOR JUDGMENT

Introduction

Michael John McPhee,…

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: [2010] FMCA 191
Decision Date: 26 March 2010

CaseChat Overview and Summary

Secure Parking (WA) Pty Ltd sought leave to commence and continue proceedings against Francis, a bankrupt solicitor, in the Supreme Court of Western Australia. The dispute centred around whether the court had the authority to grant retrospective leave under section 58(3)(b) of the Bankruptcy Act 1966 (Cth) and whether such leave should be granted on conditions. The insurer of the bankrupt’s legal practice also sought to be heard in the proceedings.

The court examined whether the leave could be granted retrospectively and what factors should be considered in determining whether leave should be granted. It was necessary to assess if the leave ought to be granted on conditions, and if so, what those conditions should be. Additionally, the court had to consider the costs associated with this application.

The court found that it had the power to grant leave retrospectively and identified several factors that should be considered in determining whether to grant leave, including the merits of the case, the interests of justice, and the effect on third parties. The court concluded that leave should be granted on conditions, allowing the first respondent to apply for specific conditions and providing liberty to apply regarding the costs of the application. The insurer of the bankrupt’s legal practice was also granted leave to be heard.

The final orders granted the applicant leave to commence and continue proceedings in the Supreme Court, nunc pro tunc, and to take any further steps in the proceedings. The first respondent was given liberty to apply for conditions to be imposed on the grant of leave, and there was liberty to apply regarding the costs of the application. The insurer of the bankrupt’s legal practice was also granted leave to be heard in the proceedings.

Orders

Orders of the court

The applicant have leave under s.58(3)(b) of the Bankruptcy Act 1966 (Cth):

(a) nunc pro tunc, to commence, and take such steps as have already been taken, in proceeding CIV 1164 of 2009 in the Supreme Court of Western Australia (“the Supreme Court Proceedings”); and

(b) to take any fresh steps in the Supreme Court Proceedings.

The first respondent have liberty to apply in relation to the imposition of conditions upon the grant of leave under order (1).

There be liberty to apply with respect to the costs of this application.

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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