Thorn Australia Pty Ltd v Andersen - [2017] QDC 314

DISTRICT COURT OF QUEENSLAND

CITATION:

Thorn Australia Pty Ltd v Andersen & Anor [2017] QDC 314

PARTIES:

THORN AUSTRALIA PTY LTD
(applicant)

v

SHAWN IAN ANDERSEN
(first respondent)

and

AMANDA JANE PASCOE
(second respondent)

FILE NO:

601 of 2017

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

21 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

27 November 2017

JUDGE:

Richards DCJ

ORDER:

The District Court has jurisdiction to hear and determine the applicant’s application.

CATCHWORDS:

BANKRUPTCY – BANKRUPTCY COURTS – JURISDICTION AND POWERS OF COURT – GENERALLY – whether the District Court has jurisdiction to hear this matter because of bankruptcy and title in the property vesting in the trustee in bankruptcy

Bankruptcy Act 1966 (Cth), ss 5, 27, 31, 58
Property Law Act 1974 (Qld), ss 30A
Uniform Civil Procedure Rules 1999 (Qld), r 72

Cordes v Dr Peter Ironside Pty Ltd [2010] 2 Qd R 235
Meriton Apartments Pty Ltd & Anor v Industrial Court of New South Wales & Anor (2008) 171 FCR 380
Morris Finance Limited v Brown [2017] FCAFC 97
Scott v Bagshaw [2000] 99 FCR 573
The Trustee Property of Paul Jason Uhrhane, a Bankrupt and Anor v Gunn & Anor (No 2) [2013] QDC 287

SOLICITORS:

Mr C Yam of SLF Lawyers for the applicant
Mr R Burgio of Legend Legal Group for the respondents
Mr B Long of Celtic Legal for Tony Johnson Trustee of bankrupt estate of Andersen
Ms K F Kalkman of Patane Lawyers for Australian Liquor Marketers Pty Ltd

The applicant seeks declarations that the applicant has an equitable charge over the interest of the first respondent in the land and improvements situated at 3A Edgewater Terrace, Idalia and seeks the appointment, pursuant to s 30A of the Property Law Act 1974, of statutory trustees for the sale of the property. The applicant is also seeking, pursuant to r 72 of the Uniform Civil Procedure Rules 1999, leave to proceed with the hearing of the originating application filed by the applicant in the court on 17 February 2017 and that Anthony James Johnson, trustee of the property of Shawn Andersen, a bankrupt, be included as a party to the proceedings.

The first respondent was a party to a secured guarantee dated 10 December 2015 signed by the first respondent. It guaranteed that a company by the name of Andersen One Pty Ltd would pay monies due and owing by that company and he guaranteed payment against any property that he owned.

The first respondent was declared bankrupt on 14 June 2017. This application was filed before that date, namely 17 February 2017. A preliminary question has been taken in relation to whether this court has jurisdiction to hear this matter or whether because of the bankruptcy and title in the property vesting in the trustee in bankruptcy the matter should be stayed here pending hearing in the Federal Court or dismissed for want of jurisdiction.

In making the submission that this court does not have…

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 Thorn Australia Pty Ltd v Andersen

Details

AGLC: Thorn Australia Pty Ltd v Andersen [2017] QDC 314
Case: [2017] QDC 314
Decision Date: 21 December 2017

CaseChat Overview and Summary

Thorn Australia Pty Ltd sought an order from the District Court to determine the rights to a property. Andersen, the respondent, claimed that the District Court lacked jurisdiction due to the property being subject to a bankruptcy proceeding, with the title vested in the trustee in bankruptcy. The court was required to determine whether it had jurisdiction to hear the matter, considering the bankruptcy and the vesting of property title in the trustee.

The court examined the legal framework governing the jurisdiction of the District Court in matters involving bankruptcy. It considered the Bankruptcy Act 1966 and the relevant provisions concerning the vesting of property in a trustee in bankruptcy. The court noted that while the property was indeed subject to a bankruptcy proceeding, the specific issue before the court did not directly involve the bankruptcy estate or the trustee in bankruptcy. Instead, the matter pertained to the contractual rights between the parties involved, which were distinct from the bankruptcy estate. Consequently, the court concluded that it had jurisdiction to hear the matter and determine the rights to the property as between the parties.

In light of the court's findings, it ruled that the District Court had jurisdiction to hear and determine the applicant’s application. The court's decision was based on the premise that the issue at hand did not implicate the bankruptcy estate or the trustee in bankruptcy directly, thus falling outside the exclusive jurisdiction typically reserved for matters concerning the bankruptcy estate.

Orders

Orders of the court

The District Court has jurisdiction to hear and determine the applicant’s application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Thorn Australia Pty Ltd v Andersen & Anor [2017] QDC 314
PARTIES:	THORN AUSTRALIA PTY LTD (applicant) v SHAWN IAN ANDERSEN (first respondent) and AMANDA JANE PASCOE (second respondent)
FILE NO:	601 of 2017
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	21 December 2017
DELIVERED AT:	Brisbane
HEARING DATE:	27 November 2017
JUDGE:	Richards DCJ
ORDER:	The District Court has jurisdiction to hear and determine the applicant’s application.
CATCHWORDS:	BANKRUPTCY – BANKRUPTCY COURTS – JURISDICTION AND POWERS OF COURT – GENERALLY – whether the District Court has jurisdiction to hear this matter because of bankruptcy and title in the property vesting in the trustee in bankruptcy Bankruptcy Act 1966 (Cth), ss 5, 27, 31, 58 Property Law Act 1974 (Qld), ss 30A Uniform Civil Procedure Rules 1999 (Qld), r 72 Cordes v Dr Peter Ironside Pty Ltd [2010] 2 Qd R 235 Meriton Apartments Pty Ltd & Anor v Industrial Court of New South Wales & Anor (2008) 171 FCR 380 Morris Finance Limited v Brown [2017] FCAFC 97 Scott v Bagshaw [2000] 99 FCR 573 The Trustee Property of Paul Jason Uhrhane, a Bankrupt and Anor v Gunn & Anor (No 2) [2013] QDC 287
SOLICITORS:	Mr C Yam of SLF Lawyers for the applicant Mr R Burgio of Legend Legal Group for the respondents Mr B Long of Celtic Legal for Tony Johnson Trustee of bankrupt estate of Andersen Ms K F Kalkman of Patane Lawyers for Australian Liquor Marketers Pty Ltd