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State Planning Commission v Della Vedova

State Planning Commission v Della Vedova

Case [1997] FCA 720 1 August 1997

Costs

Unconscionable Conduct

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FEDERAL COURT OF AUSTRALIA

BANKRUPTCY - Bankruptcy notice - Order for costs to be paid by debtor on refusal of debtor's application for interlocutory injunction - Whether final order - Whether debtor has cross demand.

REAL PROPERTY - Caveats - Compensation for loss suffered as result of lodging without reasonable cause - Loss suffered as result of maintenance rather than lodging - Whether compensation available.

TRADE PRACTICES - Unconscionable conduct - Prohibition of engaging in conduct that is unconscionable within the meaning of unwritten law - Refusal to withdraw caveat on request - Whether unconscionable conduct.

Bankruptcy Act 1966, ss40(1)(g), 40(3)(b), 41(7)

Trade Practices Act 1974, s51AA, 51AB(2)(b)

Transfer of Land Act 1893, (WA), s140

James v Abrahams (1981) 34 ALR 657

Ebert v Union Trustee Co of Australia Ltd (1960) 104 CLR 346

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447

Blomley v Ryan (1956) 99 CLR 362

Nelson v Kimberley Homes Pty Ltd (1989) ANZ Conv Rep 123

Hooke v Holland [1984] WAR 16

Savill v Chase Holdings (Wellington) Ltd [1989] 1 NZLR 257

Kuper v Keywest Constructions Pty Ltd (1990) 3 WAR 419

Re Skinner's and Smith's Application (1982) 45 ALR 553

Re Gould; Ex parte Skinner (1983) 72 FLR 393

Kayo Contractors v Fernandez (1984) 71 FLR 34

Re Smith; Ex parte Chesson (1992) 106 ALR 359

Re Gibbs; Ex parte Triscott (1992) 133 ALR 718

ANDREW CECIL THORPE v BRISTILE PTY LTD

WG 7020 of 1997

SUNDBERG J

PERTH

1 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA)

EXERCISING FEDERAL JURISDICTION)

IN BANKRUPTCY )No WG 7020 of 1997

BANKRUPTCY DISTRICT OF THE STATE)

OF WESTERN AUSTRALIA)

IN THE MATTER OF BANKRUPTCY NOTICE

NO B246 OF 1996

AND IN THE MATTER OF:ANDREW CECIL THORPE

Applicant

AND:BRISTILE PTY LTD

Respondent

JUDGE:SUNDBERG J

PLACE:PERTH

DATED:1 AUGUST 1997

MINUTES OF ORDER

THE COURT DECLARES THAT it is not satisfied that the applicant has a counter-claim, set-off or cross demand of the type specified in s40(1)(g) of the Bankruptcy Act 1966.

THE COURT ORDERS THAT the applicant pay the respondent's taxed costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

EXERCISING FEDERAL JURISDICTION)

IN BANKRUPTCY )No WG 7020 of 1997

BANKRUPTCY DISTRICT OF THE STATE)

OF WESTERN AUSTRALIA)

IN THE MATTER OF BANKRUPTCY NOTICE

NO B246 OF 1996

AND IN THE MATTER OF:ANDREW CECIL THORPE

Applicant

AND:BRISTILE PTY LTD

Respondent

JUDGE:SUNDBERG J

PLACE:PERTH

DATED:1 AUGUST 1997

REASONS FOR JUDGMENT

BACKGROUND

On 14 February 1997 the respondent caused to be served on the applicant a bankruptcy notice based on an order for costs made by Walsh J in the Supreme Court of Western Australia. The costs order was consequential on an unsuccessful application by the applicant for an interlocutory injunction seeking the removal of a caveat lodged by the respondent over the title to the land known as 14 Beagle Street, Mosman Park ("the land").…

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 State Planning Commission v Della Vedova

Details

AGLC: State Planning Commission v Della Vedova [1997] FCA 720
Case: [1997] FCA 720
Decision Date: 1 AUGUST 1997

CaseChat Overview and Summary

State Planning Commission was the plaintiff and Della Vedova was the defendant in this case heard by the Federal Court. The plaintiff sought a declaration that the defendant's caveat over certain land was invalid, an order for the removal of the caveat, and an order that the defendant pay the plaintiff's costs. The defendant opposed the application and sought an interlocutory injunction to restrain the plaintiff from lodging a bankruptcy notice against the defendant. The court was required to decide whether the costs order was a final order, whether the defendant had a cross-demand, and whether the defendant's refusal to withdraw the caveat on request amounted to unconscionable conduct. The court held that the costs order was a final order and that the defendant did not have a cross-demand. The court also held that the defendant's refusal to withdraw the caveat on request did not amount to unconscionable conduct. The court found that the defendant's caveat was valid and that the plaintiff was entitled to the declaration, order for removal of the caveat, and order for costs to be paid by the defendant. The defendant's application for an interlocutory injunction was dismissed.

Orders