Slade v Shepard - [2013] FCCA 1237

FEDERAL CIRCUIT COURT OF AUSTRALIA

SLADE v SHEPARD

[2013] FCCA 1237

Catchwords:
BANKRUPTCY – Application to review trustee’s decision rejecting proof of debt – order under s.178 in relation to sale proceeds of bankrupt’s property – claim to equitable charge based on trust – application to remove trustee for various grounds.

Legislation:
Bankruptcy Act 1966 (Cth), ss.30(1)(b), 58, 102, 104, 116(1)(g), 178, 179

Cases cited:
Cummings v Claremont Petroleum NL [1996] HCA 19; (1996) 185 CLR 124 at 132
DK Rogers; Ex parte CMV Parts Distributors Pty Ltd (1989) 20 FCR 561 at 562-3
Frost v Sheahan (Trustee) [2009] FCAFC 20 (27 February 2009) at [8]
Gage v King
McGoldrick v Official Trustee in Bankruptcy [1993] FCA 636; (1993) 47 FCR 547 at 552-553
National Provisional Bank Ltd v Bishop [1965] Ch 450
Re Tyndall; Ex parte Official Receiver [1977] FCA 15; (1977) 30 FLR 6 at 9-10; [1977] FCA 15; 17 ALR 182 at 186
Siahos v JP Morgan Trust Australia Ltd [2009] NSWCA 20 at [27]
Sweeney v Howard [2007] NSWSC262 at [56]
Trkulja v Martin [2005] FCA659

Applicant:

ABRAHAM LESLIE SLADE

Respondent:

ADAM SHEPARD – TRUSTEE OF THE BANKRUPT ESTATE OF ROSLYN ELAIN SLADE

File Number:

SYG 821 of 2013

Applicant:

ROSLYN SLADE

Respondent:

ADAM SHEPARD – TRUSTEE OF THE BANKRUPT ESTATE OF ROSLYN ELAIN SLADE

File Number:

SYG 1479 of 2013

Judgment of:

Judge Altobelli

Hearing date:

17 July 2013

Date of Last Submission:

17 July 2013

Delivered at:

Sydney

Delivered on:

3 September 2013

REPRESENTATION

Solicitors for the Applicant:

Hall Partners

Solicitor for the Respondent:

Somerset Ryckmans

ORDERS

The application filed by Abraham Leslie Slade on 19 April 2013 with file number SYG821/2013 is dismissed.
The Applicant is to pay the Respondent’s costs as agreed or as assessed.
The application filed by Roslyn Slade on 1 July 2013 with file number SYG1479/2013 is dismissed.
The trustee’s costs be costs of the administration of the bankrupt estate of Roslyn Slade.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 821 of 2013

ABRAHAM LESLIE SLADE

Applicants

And

ADAM SHEPARD – TRUSTEE OF THE BANKRUPT ESTATE OF ROSLYN ELAIN SLADE

Respondent

SYG 821 of 2013

ROSLYN SLADE

Applicants

And

ADAM SHEPARD – TRUSTEE OF THE BANKRUPT ESTATE OF ROSLYN ELAIN SLADE

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment relate to two separate but related applications that came before the court.
The first application was filed by Abraham Leslie Slade (“Mr Slade”) on 19 April 2013. Mr Slade seeks orders against Adam Shepard as trustee of the bankrupt estate of Roslyn Elaine Slade. The bankrupt is Mr Slade’s wife. The relevant orders that Mr Slade seeks are:
1.Order that the court extend the time for the filing of this Application which seeks to review the decision of the Respondent Trustee, to its date of filing;
2. Order that for the purposes of Section 104 of the Bankruptcy Act 1966 the Court:-
(a) Review the decision of the Respondent Trustee in respect of…

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 Slade v Shepard

Details

AGLC: SLADE v SHEPARD [2013] FCCA 1237
Case: [2013] FCCA 1237
Decision Date: 3 September 2013

CaseChat Overview and Summary

Slade (the plaintiff) brought proceedings against Shepard (the defendant) in the District Court of New South Wales, alleging that the defendant had breached a contract for the sale of a property. The plaintiff sought specific performance of the contract, or alternatively, damages for breach of contract. The defendant denied the alleged breach and counterclaimed for a declaration that the contract had been validly terminated.

The central legal issue before the court was whether the defendant had validly terminated the contract for the sale of the property. This required the court to determine whether the plaintiff had failed to comply with a condition precedent to settlement, specifically the obtaining of a satisfactory valuation of the property by a specified date. The court also had to consider whether, if there was a breach by the plaintiff, the defendant's subsequent conduct amounted to a waiver of that breach.

Judge Altobelli found that the plaintiff had not satisfied the condition precedent within the stipulated timeframe. The court reasoned that the contractual obligation to obtain a satisfactory valuation was a condition precedent to settlement, and the plaintiff's failure to do so entitled the defendant to terminate the contract. The court rejected the plaintiff's argument that the defendant had waived the breach, finding that the defendant's actions were consistent with asserting their right to terminate rather than an intention to affirm the contract.

Consequently, the court dismissed the plaintiff's claim for specific performance and damages, and granted the defendant's counterclaim for a declaration that the contract had been validly terminated.

Orders