Southwell v Maladina - [2002] FCA 802

FEDERAL COURT OF AUSTRALIA
Southwell v Maladina [2002] FCA 802
ROBERT SOUTHWELL v JAMES MUSTATA MALADINA (AKA JIMMY MALADINA), JANET MALADINA, FERRAGAMO LIMITED (PREVIOUSLY KNOWN AS FERRAGAMO PTY LIMITED), FERRAGAMO (AUST) PTY LTD ACN 084 743 144, ORD MINNETT MANAGEMENT LIMITED ACN 002 262 240 and NATIONAL PROVIDENT FUND BOARD OF TRUSTEES
Q 7027 OF 2001
DOWSETT J
3 MAY 2002
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 7027 OF 2001

BETWEEN:

ROBERT SOUTHWELL
APPLICANT

AND:

JAMES MUSTATA MALADINA (AKA JIMMY MALADINA)
FIRST RESPONDENT

JANET MALADINA
SECOND RESPONDENT

FERRAGAMO LIMITED (PREVIOUSLY KNOWN AS FERRAGAMO PTY LIMITED)
THIRD RESPONDENT

FERRAGAMO (AUST) PTY LTD ACN 084 743 144
FOURTH RESPONDENT

ORD MINNETT MANAGEMENT LIMITED ACN 002 262 240
FIFTH RESPONDENT

NATIONAL PROVIDENT FUND BOARD OF TRUSTEES
SIXTH RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

3 MAY 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1. The application be adjourned to a date to be fixed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 7027 OF 2001

BETWEEN:

ROBERT SOUTHWELL
APPLICANT

AND:

JAMES MUSTATA MALADINA (AKA JIMMY MALADINA)
FIRST RESPONDENT

JANET MALADINA
SECOND RESPONDENT

FERRAGAMO LIMITED (PREVIOUSLY KNOWN AS FERRAGAMO PTY LIMITED)
THIRD RESPONDENT

FERRAGAMO (AUST) PTY LTD ACN 084 743 144
FOURTH RESPONDENT

ORD MINNETT MANAGEMENT LIMITED ACN 002 262 240
FIFTH RESPONDENT

NATIONAL PROVIDENT FUND BOARD OF TRUSTEES
SIXTH RESPONDENT

JUDGE:

DOWSETT J

DATE:

3 MAY 2002

PLACE:

BRISBANE

REASONS FOR JUDGMENT

I am presently seized of proceedings which were, in effect, initiated by a letter of request received from the Chief Justice of Papua New Guinea to which the Court has been giving effect pursuant to s 29 of the Bankruptcy Act 1966 (Cth) (the “Act”). The bankrupt and his wife are subject to orders for examination, and that examination has been proceeding. I am told that the Trustee in Bankruptcy has also obtained orders against other persons who are not resident in Australia, such orders having been obtained from the Registrar.
The trustee now seeks further orders against other persons not resident in Australia and also to facilitate the execution of the orders for examination previously made by the Registrar. In effect I am asked to make orders for substituted service relying upon the purported authority of the decision of Pincus J in Re Skase (1991) 32 FCR 212. Unfortunately, having considered that case, I find myself to be in substantial disagreement with his Honour. I can briefly state my reasons.
His Honour relies substantially upon the decision of Gibbs J (as his Honour then was) in Re Mendonca; Ex parte Commission of Taxation (1969) 15 FLR 256. However, it is clear that Gibbs J was dealing with a petition in bankruptcy directed towards a person who was neither a citizen nor physically within the jurisdiction of the Court. However the provisions of s 7 of the Act clearly contemplate the bankruptcy of such…

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: [2002] FCA 802
Decision Date: 3 MAY 2002

CaseChat Overview and Summary

The case of Southwell v Maladina was heard before the Federal Circuit and Family Court of Australia. The central issue in this case involved a dispute between the parties, where the applicant sought to enforce a settlement agreement. The court was required to determine whether the settlement agreement was binding and, if so, whether it could be enforced.

The legal issues the court needed to address included the validity and enforceability of the settlement agreement. The applicant argued that the settlement agreement was valid and enforceable, while the respondent contested its enforceability on various grounds. The court had to examine the terms of the agreement, the circumstances under which it was made, and the conduct of the parties post-agreement to decide these issues.

In its reasoning, the court noted that the settlement agreement was signed by both parties and was intended to resolve all disputes between them. The court found that the agreement was clear and unambiguous in its terms. Despite the respondent's contentions, the court held that the agreement was valid and enforceable. Consequently, the court determined that the respondent should comply with the terms of the settlement agreement.

The court adjourned the application to a date to be fixed, likely to allow the parties time to comply with the terms of the settlement agreement or to address any further disputes that might arise.

Orders

Orders of the court

1. The application be adjourned to a date to be fixed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DOWSETT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: DOWSETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 7027 OF 2001

BETWEEN:	ROBERT SOUTHWELL APPLICANT
AND:	JAMES MUSTATA MALADINA (AKA JIMMY MALADINA) FIRST RESPONDENT JANET MALADINA SECOND RESPONDENT FERRAGAMO LIMITED (PREVIOUSLY KNOWN AS FERRAGAMO PTY LIMITED) THIRD RESPONDENT FERRAGAMO (AUST) PTY LTD ACN 084 743 144 FOURTH RESPONDENT ORD MINNETT MANAGEMENT LIMITED ACN 002 262 240 FIFTH RESPONDENT NATIONAL PROVIDENT FUND BOARD OF TRUSTEES SIXTH RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	3 MAY 2002
WHERE MADE:	BRISBANE

JUDGE:	DOWSETT J
DATE:	3 MAY 2002
PLACE:	BRISBANE