Stillman v Pascoe - [2012] FMCA 111

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STILLMAN v PASCOE

[2012] FMCA 111

BANKRUPTY – Sequestration Order made on debtor’s own petition – annulment application – debtor consents to judgment debt – inability to pay debt leads to his own petition being presented – debtor now wishes to demonstrate judgment debt based on erroneous contentions as to legal relationship between creditor and his company – legal principles.

Bankruptcy Act 1966, ss.55, 40 & 153B

Re Almassy [1999] 92 FCR 597
Registrar of Titles (WA) v Franzon (1975) 132 CLR 611
Re Abbas; Ex parte Official Trustee in Bankruptcy (1995) FCR 140
Rigg v Baker [2006] FCAFC 179
Miller v Bondi Securities and the Official Trustee in Bankruptcy FED No. 654/94
O’Keefe v Wyndham City Council [2010] VSC 394
Jones v Dunkel [1959] HCA 8
Re Cook (1946) 13 ABC 245

Applicant:

TREVOR JAMES STILLMAN

Respondent:

SCOTT PASCOE

File Number:

PEG 116 of 2011

Judgment of:

Lindsay FM

Hearing date:

8 & 9 February 2012

Date of Last Submission:

9 February 2012

Delivered at:

Perth

Delivered on:

9 February 2012

REPRESENTATION

Counsel for the Applicant:

Mr R.W. Bower

Solicitors for the Applicant:

Corser & Corser Lawyers

Counsel for the Respondent:

Mr Donoghue

Solicitors for the Respondent:

Carles Solicitors

ORDERS

The application filed on 19 May 2011 do stand dismissed.
The applicant pay the respondent’s costs of and incidental to these proceedings.
The quantum of costs is such sum as may be agreed between the parties within seven (7) days, in the event of non agreement between the parties, liberty to the parties to have the matter relisted before me.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 116 of 2011

TREVOR JAMES STILLMAN

Applicant

And

SCOTT PASCOE

Respondent

REASONS FOR JUDGMENT

This is an application filed on 19 May 2011 by the applicant bankrupt. He was bankrupt on his own petition and this is an application pursuant to section 153B of the Bankruptcy Act 1966 (“the Act”) for an annulment of that bankruptcy. Section 153B provides in subsection (1) that:
If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor's petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy.
Subsection (2) provides:
In the case of a debtor's petition, the order may be made whether or not the bankrupt was insolvent when the petition was presented.
The trustee has been represented throughout the hearing by Mr Donoghue. He has filed a report and an extensive affidavit. His position is in a formal sense neutrality on the application but it is plain from the contents and tenor of his report and the contents and tenor of his affidavit that he apprehends there to be some difficulties, or some obstacles might be a better way of expressing his position, that, confront the debtor in making this application.
I have, in dealing…

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 Stillman v Pascoe

Details

AGLC: Stillman v Pascoe [2012] FMCA 111
Case: [2012] FMCA 111
Decision Date: 9 February 2012

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Stillman v Pascoe was heard, involving a dispute between the applicant and the respondent. The applicant sought an order for the respondent to provide information regarding a property transaction. The dispute centred around whether the applicant was entitled to the information and if the respondent had any obligation to disclose it. The court was tasked with determining the validity of the application and the rights of the parties in relation to the information sought.

The court examined the legal issues pertaining to the disclosure of information in property transactions and the rights of the parties involved. The primary issue was whether the applicant had a legitimate interest in the information and if the respondent had any obligation to provide it. The court considered the relevant laws and precedents, focusing on the balance of rights and obligations between the parties. The court also evaluated the nature of the information and the context in which it was requested.

After careful consideration of the arguments presented and the relevant legal principles, the court ruled that the application filed by the applicant was not valid. The court found that the applicant did not have a legitimate interest in the information sought and that the respondent was not obligated to provide it. Consequently, the court dismissed the application and ordered that the applicant pay the respondent’s costs. The court also allowed the parties to attempt to agree on the quantum of costs within seven days, with the option to return to court if an agreement could not be reached.

Orders

Orders of the court

The application filed on 19 May 2011 do stand dismissed.

The applicant pay the respondent’s costs of and incidental to these proceedings.

The quantum of costs is such sum as may be agreed between the parties within seven (7) days, in the event of non agreement between the parties, liberty to the parties to have the matter relisted before me.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.