Stephens v Pattison & Anor and Pattison v Stephens - [2014] FCCA 62

FEDERAL CIRCUIT COURT OF AUSTRALIA

STEPHENS v PATTISON & ANOR and PATTISON v STEPHENS

[2014] FCCA 62

Catchwords:
BANKRUPTCY – Application for annulment of bankruptcy – applicant clearly solvent where sequestration order made – gross overcharging by former trustee – applicant seeking to circumvent s.154 Bankruptcy Act – overarching merit of applicant’s claim – Court lacking power to make orders sought.

Legislation:

Bankruptcy Act 1966, ss.153B, 154 178

Federal Circuit Court Act 1999, s.79(2)

CFA v Stephens and Stephens v Pattison and Pattison v Stephens (No.2) [2011] FMCA 905
Clark v Furnari [2007] FMCA 513
Sandel v Porter (1966) 115 CLR 666
Maxwell‑Smith v S & E Hall Pty Ltd [2004] FCA 840
Brake v Townsend [2006] FCA 1156
Young, In the matter of Macryannis [2011] FCA 1272

Applicant:

KENNETH LYLE STEPHENS

First Respondent:

PAUL ANTHONY PATTISON (AS FORMER TRUSTEE OF THE BANKRUPT ESTATE OF KENNETH LYLE STEPHENS, A BANKRUPT)

Second Respondent:

OFFICIAL TRUSTEE IN BANKRUPTCY (AS TRUSTEE OF THE BANKRUPT ESTATE OF KENNETH LYLE STEPHENS, A BANKRUPT)

File Number:

MLG 1025 of 2010

AND

Applicant:

PAUL ANTHONY PATTISON (AS TRUSTEE OF THE PROPERTY OF KENNETH LYLE STEPHENS, A BANKRUPT)

Respondent:

KENNETH LYLE STEPHENS

File Number:

MLG 82 of 2010

Judgment of:

Judge Burchardt

Hearing date:

25 October 2013

Date of Last Submission:

25 October 2013

Delivered at:

Melbourne

Delivered on:

28 January 2014

REPRESENTATION

MLG 1025 of 2010

Counsel for the Applicant:

Ms Knights

Solicitors for the Applicant:

Littleton Hackford & D’Alessandro

The First Respondent:

In person

Counsel for the Second Respondent:

Ms Poulakis

MLG 82 of 2010

The Applicant:

In person

Counsel for the First Respondent:

Ms Knights

Solicitors for the First Respondent:

Littleton Hackford & D’Alessandro

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 1025 of 2010

KENNETH LYLE STEPHENS

Applicant

And

PAUL ANTHONY PATTISON (AS FORMER TRUSTEE OF THE BANKRUPT ESTATE OF KENNETH LYLE STEPHENS, A BANKRUPT)

First Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY (AS TRUSTEE OF THE BANKRUPT ESTATE OF KENNETH LYLE STEPHENS, A BANKRUPT)

Second Respondent

MLG 82 of 2010

PAUL ANTHONY PATTISON (AS TRUSTEE OF THE PROPERTY OF KENNETH LYLE STEPHENS, A BANKRUPT)

Applicant

And

KENNETH LYLE STEPHENS

Respondent

REASONS FOR JUDGMENT

Introductory

By an amended application filed on 22 September 2011 Kenneth Lyle Stephens has applied for the annulment of his bankruptcy pursuant to s.153B of the Bankruptcy Act 1966 (“the Bankruptcy Act”). His amended application further seeks that the remuneration of his former trustee Mr Pattison be limited in the manner indicated in the application and that Mr Pattison pay not only his costs but also those of the second respondent, the Official Trustee.
For the reasons that follow I am going to annul Mr Stephens’ bankruptcy but I do not have, I fear, the power to make the cost orders that he seeks, which I should say I otherwise would be strongly minded to make.

Background

As long ago as November 2005 Mr Stephens had the misfortune to be involved in a car accident. The other car was…

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: [2014] FCCA 62
Decision Date: 28 January 2014

CaseChat Overview and Summary

The case of *Stephens v Pattison & Anor* and *Pattison v Stephens* concerned a dispute between two parties, Mr. Stephens and the Pattisons, arising from a contract for the sale of a property. The proceedings were heard by Burchardt J in the Supreme Court of Western Australia. The core of the disagreement revolved around whether the contract had been validly terminated by the Pattisons and, consequently, whether Mr. Stephens was entitled to the return of his deposit.

The primary legal issues before the Court were whether the Pattisons had validly terminated the contract for sale of land, and if so, whether Mr. Stephens was entitled to the return of his deposit. This involved an examination of the terms of the contract, particularly concerning the satisfaction of certain conditions precedent, and the legal effect of the parties' conduct in relation to those conditions.

Burchardt J considered the principles of contract law relating to conditions precedent and termination. The Court found that the conditions precedent in the contract had not been satisfied within the stipulated timeframe. Crucially, the Court determined that the Pattisons had not waived their right to rely on the non-satisfaction of these conditions. Therefore, the Pattisons were entitled to terminate the contract. As a consequence of the valid termination, the Court held that Mr. Stephens was not entitled to the return of his deposit.

Orders