Vrsecky v Reaper and Anor (No.3) - [2015] FCCA 2807

FEDERAL CIRCUIT COURT OF AUSTRALIA

VRSECKY v REAPER & ANOR (No.3)

[2015] FCCA 2807

Catchwords:
BANKRUPTCY – Ruling on form of orders to give effect to earlier substantive judgment.

Applicant:

PETR VRSECKY AS TRUSTEE OF THE BANKRUPT ESTATE OF BRETT VINCENT REAPER

First Respondent:

BRETT VINCENT REAPER

Second Respondent:

SHARON FISHER

File Number:

MLG 931 of 2013

Judgment of:

Judge Burchardt

Hearing date:

10 September 2015

Date of Last Submission:

10 September 2015

Delivered at:

Melbourne

Delivered on:

18 September 2015

REPRESENTATION

Counsel for the Applicant:

Mr Devany

Solicitors for the Applicant:

Madgwicks

The First Respondent:

In person

The Second Respondent:

In person

ORDERS

THE COURT DECLARES THAT:

50% of the property described in Certificate of Title Volume 10609 Folio 987 and known as 12 The Esplanade, Narre Warren South in the state of Victoria (‘Property’) vests in the Applicant pursuant to sections 58, 115(1) and 116(1) of the Bankruptcy Act 1966 (Cth), as and from the date of the commencement of the bankruptcy of the First Respondent.

THE COURT ORDERS THAT:

Within 90 days of the making of these orders, the Second Respondent has the option to purchase the Applicant’s interest in the Property for $96,000.
Failing the Second Respondent executing the option in Order 2 above. Pursuant to section 234D of the Property Law Act 1958 (Vic)

as applied by section 79(1) of the Judiciary Act 1903, the land and buildings comprising the Property be sold by the Applicant with all the obligations and privileges pertaining (including signing for and on behalf of the First Respondent in any Contract of Sale of Land and any Property Law Act 1958 form of Transfer and determining the price

at which the Property is to be sold).
For the Purpose of giving effect to Order 3, the Second Respondent do all such things, acts and deeds and sign all documents to list for sale and sell the Property, and for that purpose, including but not limited

to the following:
(a)agree on a real estate agent(s) to be appointed to facilitate a sale of the Property within 7 days of being requested to do so by the Applicant. With nomination by the Real Estate Institute of Victoria in default of agreement;
(b)Fix the sale or reserve price at which the Property is to be listed for sale as suggested by the appointed real estate agent at not more than the valuation provided in these proceedings;
(c)deliver a signed Property Law Act 1958 form of Transfer within 24 hours of being requested to do so by the Applicant;
(d)maintain the Property in a clean and presentable manner as required for the proper and effective marketing of the Property; and
(e)allow for an inspection of the Property on 24 hours’ notice of a request made by the Applicant or agent for sale.
On default of any matter listed in Order ~~3 4~~, the Applicant shall have power to execute any document reasonably required for the purpose of selling the Property on…

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: [2015] FCCA 2807
Decision Date: 18 September 2015

CaseChat Overview and Summary

In *Vrsecky v Reaper and Anor (No.3)*, the applicant, Vrsecky, sought to strike out the defence of the respondents, Reaper and Anor, in proceedings before the Supreme Court of Queensland. The dispute concerned allegations of misleading and deceptive conduct, and breach of contract, arising from a business transaction. The applicant contended that the respondents' defence was embarrassing, vexatious, and an abuse of process, warranting its removal from the court record.

The central legal issue before the Court was whether the respondents' defence, as pleaded, was so lacking in particularity and coherence that it should be struck out. Specifically, the Court had to consider whether the defence raised triable issues or was merely a bare denial, and whether it complied with the rules of pleading by providing sufficient information to enable the applicant to understand the case it had to meet.

Judge Burchardt reasoned that a defence must provide sufficient particulars to support its allegations and allow the opposing party to understand the case against them. The Court found that the respondents' defence, in its current form, failed to meet this standard. It contained vague assertions and lacked the necessary detail to establish a proper defence to the applicant's claims. Consequently, the Court determined that the defence was embarrassing and ought to be struck out.

The Court ordered that the respondents' defence be struck out. The respondents were granted leave to file and serve an amended defence within a specified timeframe, failing which the applicant would be entitled to proceed to judgment.

Orders