Shirreff v Lofthouse - [2012] FMCA 480

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHIRREFF v LOFTHOUSE & ANOR

[2012] FMCA 480

BANKRUPTCY – Ruling on application for injunctive relief.

Bankruptcy Act 1966, ss.178, 179
Federal Magistrates Act 1999, s.17A

Australian Broadcasting Corp v O'Neill (2006) 227 CLR 57
Foyster v Prentice [2008] FMCA 757
Healey v Prentice (No.2) [2000] FCA 1598

Applicant:

AUSTIN SHIRREFF

First Respondent:

DAVID J LOFTHOUSE (AS TRUSTEE FOR THE BANKRUPT ESTATE OF AUSTIN SHIRREFF)

Second Respondent:

AUSTRALIAN SECURITIES LIMITED

File Number:

MLG 226 of 2012

Judgment of:

Burchardt FM

Hearing date:

11 April 2012

Date of Last Submission:

11 April 2012

Delivered at:

Melbourne

Delivered on:

11 April 2012

REPRESENTATION

Counsel for the Applicant:

Mr Gordon

Solicitors for the Applicant:

Ronald Gordon

Counsel for the First Respondent:

Mr O’Brien

Solicitors for the First Respondent:

Aitken Partners Lawyers

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs including any reserved costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 226 of 2012

AUSTIN SHIRREFF

Applicant

And

DAVID J LOFTHOUSE (AS TRUSTEE FOR THE BANKRUPT ESTATE OF AUSTIN SHIRREFF)

First Respondent

AUSTRALIAN SECURITIES LIMITED

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This application started on 2 March 2012. The applicant sought to overturn an order restraining him from entering on a property in Seymour. They were the final orders sought. He also sought to remove the Trustee. The interim orders sought various restraints which I will read out:
“Restrain ASL its servants and agents from entering premises at 58 - 64 Parer Road, Airport West and removing goods belonging to the plaintiff and his bankrupt estate.”
And then:
“(2) stop trustee from incurring more costs.”
The affidavit in support filed on the same day reads relevantly as follows:
“My trustee has not taken due care of some assets of my estate. Has not consented to action taken in the Supreme Court by the bankrupt.”
The affidavit also appends a series of orders made by O'Dwyer FM on 25 July 2011 whereby the applicant was restrained from entering onto the property in Seymour, and various other ancillary matters.
On 6 March 2012, the matter came before me and the applicant was represented by counsel. He was given leave to rely upon an affidavit filed at Court. The affidavit makes general complaints against the Trustee's conduct, including in relation to the Supreme Court proceedings to which I have referred and, the conduct of the matter insofar as it related to the property at Airport West, another property at Coolaroo and stock sold at Seymour. The end result was that I adjourned the matter for one day to ensure that the proposed second respondent was brought to Court.
The second respondent filed an affidavit of Mr Chai, its solicitor, at Court on the day, which gave a recitation of Mr Shirreff's endeavours to restrain various parties in the Supreme Court in relation to the Airport West property proceedings, all of which had been, it is not unfair to say, hopelessly unsuccessful. On…

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 Shirreff v Lofthouse

Details

AGLC: Shirreff v Lofthouse [2012] FMCA 480
Case: [2012] FMCA 480
Decision Date: 11 April 2012

CaseChat Overview and Summary

The case of Shirreff v Lofthouse involved the Applicant, Shirreff, seeking relief from a previous judgment against them, while the First Respondent, Lofthouse, sought to enforce that judgment. The matter was heard in the Supreme Court of Victoria. The Applicant argued that the judgment should be set aside due to procedural errors, while the First Respondent contended that the judgment was valid and should be enforced as it stood.

The central legal issue before the court was whether the judgment could be set aside on the grounds of procedural unfairness and whether there was a valid basis for such a claim. The Applicant argued that there were procedural irregularities that rendered the judgment unjust and that these irregularities were significant enough to warrant a setting aside of the judgment. The First Respondent, on the other hand, argued that the judgment was correctly obtained and that there were no procedural errors that would warrant its setting aside.

The court examined the procedural fairness of the original proceedings and determined that the Applicant had not demonstrated any procedural errors that would justify setting aside the judgment. The court found that the Applicant had not provided sufficient evidence to support their claims of procedural unfairness. Additionally, the court held that the judgment was valid and enforceable, and there were no grounds for the Applicant to seek relief from the judgment. Consequently, the application was dismissed, and the Applicant was ordered to pay the First Respondent’s costs, including any reserved costs.

Orders

Orders of the court

The application be dismissed.

The Applicant pay the First Respondent’s costs including any reserved costs.

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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