FEDERAL COURT OF AUSTRALIA
Smith v Abbott Stillman & Wilson [2007] FCA 1256
TREVOR SMITH v ABBOTT STILLMAN & WILSON
VID 1125 OF 2006RYAN J
17 AUGUST 2007
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1125 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
TREVOR SMITH
AppellantAND:
ABBOTT STILLMAN & WILSON
RespondentJUDGE:
RYAN J
DATE OF ORDER:
17 AUGUST 2007
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The respondent’s costs of the appeal form part of the petitioning creditor’s costs in the bankruptcy.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1125 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
TREVOR SMITH
AppellantAND:
ABBOTT STILLMAN & WILSON
Respondent
JUDGE:
RYAN J
DATE:
17 AUGUST 2007
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
By notice of appeal filed in this Court on 13 October 2006, the appellant has appealed from orders made by Burchardt FM on 25 September 2006, which included a sequestration order against the estate of the appellant; see Abbott Stillman & Wilson v Smith [2006] FMCA 1519.
Background to the appeal
On 15 July 2004 the respondent firm filed a complaint against the appellant in the Magistrates Court of Victoria at Melbourne, claiming an amount of $36,763.40. On 7 February 2005 an amended complaint was filed, claiming a reduced amount of $21,687.35. The respondent alleged that the amounts owed by the appellant were evidenced by tax invoices rendered by the respondent for legal services provided to the appellant pursuant to an agreement dated 20 November 2003.
On 5 August 2005 terms of settlement were executed between the appellant and respondent in the Magistrates Court proceeding. Those terms provided that the respondent would accept, in full and final settlement of its claim, payments to be made in accordance with a schedule incorporated in the terms. Initially, the appellant made payments as required by the schedule, but, on 10 February 2006, he failed to make a stipulated payment. The terms of settlement provided that, in the event of a default by the appellant in payment of any instalment, the complaint should be reinstated, and the respondent be entitled to enter judgment by consent for the full amount claimed less any part payments made by the appellant.
On 28 February 2006, Smith FM ordered that the complaint be reinstated, that the respondent file and serve an application for judgment within 7 days, and that the appellant file and serve any application in response within 7 days of service of the application. In accordance with the terms of settlement, the respondent wrote to the appellant on 28 February 2006 noting that the appellant had defaulted in complying with the schedule of payments, and advising that, if payment were not received by 6 March 2006, an application for judgment would be made to the Magistrates…
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- AGLC
- Smith v Abbott, Stillman & Wilson [2007] FCA 1256
- Case
- [2007] FCA 1256
- Decision Date
CaseChat Overview and Summary
The Court considered whether there were substantial reasons to warrant the exercise of the discretion to go behind the judgment of the Magistrates Court. The Court found that Smith had entered voluntarily into the terms of settlement, and that the judgment had been entered by consent pursuant to the terms of settlement after a default in making a payment required by the terms. The Court held that, even if the appellant had succeeded in showing that the judgment itself had been irregularly entered, the terms of settlement present an insuperable obstacle to his successfully maintaining that a substantial debt was not in truth and reality due from him to the respondent.
The appeal was dismissed with costs. The respondent’s costs of the appeal were ordered to form part of the petitioning creditor’s costs in the bankruptcy.
ORDERS:
1. The appeal be dismissed.
2. The respondent’s costs of the appeal form part of the petitioning creditor’s costs in the bankruptcy.
Orders
Orders of the court
1. The appeal be dismissed.
2. The respondent’s costs of the appeal form part of the petitioning creditor’s costs in the bankruptcy.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: RYAN J
Full text does not contain this section.