Shephard v Robson (No 2) - [2015] FCA 1443

FEDERAL COURT OF AUSTRALIA
Shephard v Robson (No 2) [2015] FCA 1443

Citation: Shephard v Robson (No 2) [2015] FCA 1443

Parties: DEREK GEORGE SHEPHARD v WILLIAM ROLAND ROBSON

File number: NSD 595 of 2014

Judge: MURPHY J

Date of judgment: 16 December 2015

Legislation: Bankruptcy Act 1966 (Cth)

Cases cited: Shephard v Robson [2015] FCA 1194

Date of hearing: Heard on the papers

Date of last submissions: 20 November 2015

Place: Melbourne

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 6

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr J Tobin

Solicitor for the Respondent: Watson Mangioni Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 595 of 2014

BETWEEN:
DEREK GEORGE SHEPHARD
Applicant

AND:
WILLIAM ROLAND ROBSON
Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

16 DECEMBER 2015

WHERE MADE:

MELBOURNE

THE COURT ORDERS AND DECLARES THAT:
1.William Robson be released from his undertaking to the Court given on 2 July 2014 not to distribute any funds received from James Roger and Stephen Hall from the sale of the property known as 53 Fairview Road, Sapphire Beach, NSW.
2.The amount of $8,577.59 being 6% of the net proceeds of sale attributable to 10/12ths of the property known as 53 Fairview Road, Sapphire Beach, NSW be declared protected moneys under the Bankruptcy Act 1966 (Cth).
3.The Respondent is to pay the Applicant the sum of $8,577.59 within 28 days.
4.Each party is to bear their own costs of the proceeding.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 595 of 2014

BETWEEN:
DEREK GEORGE SHEPHARD
Applicant

AND:
WILLIAM ROLAND ROBSON
Respondent

JUDGE:

MURPHY J

DATE:

16 DECEMBER 2015

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

I handed down reasons for judgment in this proceeding on 5 November 2015, holding (at [117]) that it was fair to attribute 6% of a 10/12^th part of the net proceeds of sale of the property known as 53 Fairview Road, Sapphire Beach, NSW (“Sapphire Beach property”) to protected money outlaid by Mr Shephard to purchase his interest in that property (Shephard v Robson [2015] FCA 1194).
I directed the parties to confer and to file draft minutes of orders reflecting the reasons. The parties filed draft minutes of orders which are identical except in relation to the central question of the amount to be declared protected monies under the Bankruptcy Act 1966 (Cth).
Mr Shephard proposed an order that $12,000 be declared protected monies, presumably in reliance on [116] of my reasons for judgment. Mr Robson proposed an order that $8,577.59, being 6% of the net proceeds of sale attributable to 10/12ths of the Sapphire Beach property be declared protected monies. I have made orders in accordance with the draft minutes provided by Mr Robson as they properly reflect my reasons.
At the time I handed down…

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.

Continue reading Shephard v Robson (No 2)

Details

AGLC: Shephard v Robson (No 2) [2015] FCA 1443
Case: [2015] FCA 1443
Decision Date: 16 December 2015

CaseChat Overview and Summary

In the case of Shephard v Robson (No 2) the applicant, Derek George Shephard, sought a declaration that certain funds were protected monies under the Bankruptcy Act 1966 (Cth) and sought an order for the release of funds previously held by the respondent, William Roland Robson, under an undertaking given to the Court. The legal dispute centred on the ownership and distribution of proceeds from the sale of a property located at 53 Fairview Road, Sapphire Beach, NSW. The case followed a previous judgment where it was determined that a portion of the net proceeds of sale should be attributed to protected moneys outlaid by Shephard to purchase his interest in the property.

The primary legal issue before the Court was the precise calculation of the amount to be declared as protected monies under the Bankruptcy Act 1966 (Cth). This involved determining the correct percentage of the net proceeds of sale attributable to Shephard's interest in the Sapphire Beach property. The Court had to consider the submissions of both parties regarding the allowable deductions from the net proceeds of sale and ensure that all expenses related to the sale were properly accounted for. The Court needed to verify that the amount proposed by Robson accurately reflected the net proceeds of sale and the appropriate percentage attributable to Shephard's protected monies.

The Court, presided over by Justice Murphy, reviewed the draft minutes of orders submitted by both parties and determined that the amount to be declared as protected monies should be 6% of the net proceeds of sale attributable to Shephard's 10/12th part of the property. After considering Robson's affidavit detailing the expenses associated with the sale, the Court was satisfied that all deductions were appropriately related to the sale. Consequently, the Court calculated 6% of the net proceeds of sale, amounting to $8,577.59, and ordered this sum to be declared as protected monies. The Court also released Robson from his previous undertaking not to distribute the funds and ordered him to pay the amount to Shephard within 28 days. Both parties were ordered to bear their own costs of the proceeding.

Orders