Wealthsure Pty Limited v Selig (No 2) - [2013] FCA 847

FEDERAL COURT OF AUSTRALIA
Wealthsure Pty Limited v Selig (No 2) [2013] FCA 847

Citation: Wealthsure Pty Limited v Selig (No 2) [2013] FCA 847

Parties: WEALTHSURE PTY LIMITED ABN 93 097 405 108 and DAVID BERTRAM v RONALD SELIG AND JANNA SELIG, RICHARD WILLIAM SPENCER, SILVANA PEROVICH, MARK RICHARD NORTON, PETER MAURICE TOWNLEY, NEOVEST LIMITED (IN LIQUIDATION) ACN 104 915 906, NORTON CAPITAL PTY LIMITED (IN LIQUIDATION) ACN 086 207 169, DANIEL GEOFFREY LILLEY, DAMIEN BERNARD GREER, ROBERT NOEL GALLAGHER, STEPHEN JAMES DICKENS and MICHAEL JOSEPH CROUCH

File number: SAD 97 of 2013

Judge: BESANKO J

Date of judgment: 21 August 2013

Catchwords:
PRACTICE AND PROCEDURE – Application to discharge stay on execution of judgment – where Official Trustee appointed trustee of second appellant’s bankrupt estate – where Official Trustee has elected to discontinue appeal – whether application is within the scope of a liberty to apply provision – whether first appellant will suffer prejudice.

Held: The stay of execution in favour of the second appellant be discharged.

Legislation: Bankruptcy Act 1966 (Cth) ss 60(2), 117, 178
Federal Court Rules 2011 (Cth)

Cases cited: Abigroup Limited v Abignano (1992) 39 FCR 74
Maritime Union of Australia v Geraldton Port Authority [2000] FCA 1342
Selig v Wealthsure Pty Limited [2013] FCA 685
Wealthsure Pty Limited v Selig [2013] FCA 628

Date of hearing: 13 August 2013

Date of last submissions: 13 August 2013

Place: Sydney (heard in Adelaide)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 14

Counsel for the First Appellant: Mr T Cox

Solicitor for the First Appellant: Cosoff Cudmore Knox

Counsel for the Second Appellant: The Second Appellant did not appear

Counsel for the First Respondents: Mr P Heywood-Smith QC with Mr D Riggall

Solicitor for the First Respondents: Radbone and Associates

Counsel for the Second to Twelfth Respondents: The Second to Twelfth Respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 97 of 2013

BETWEEN:
WEALTHSURE PTY LIMITED ABN 93 097 405 108
First Appellant

DAVID BERTRAM
Second Appellant

AND:
RONALD SELIG AND JANNA SELIG
First Respondents

RICHARD WILLIAM SPENCER
Second Respondent

SILVANA PEROVICH
Third Respondent

MARK RICHARD NORTON
Fourth Respondent

PETER MAURICE TOWNLEY
Fifth Respondent

NEOVEST LIMITED (IN LIQUIDATION) ACN 104 915 906
Sixth Respondent

NORTON CAPITAL PTY LIMITED (IN LIQUIDATION) ACN 086 207 169
Seventh Respondent

DANIEL GEOFFREY LILLEY
Eighth Respondent

DAMIEN BERNARD GREER
Ninth Respondent

ROBERT NOEL GALLAGHER
Tenth Respondent

STEPHEN JAMES DICKENS
Eleventh Respondent

MICHAEL JOSEPH CROUCH
Twelfth Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

21 AUGUST 2013

WHERE MADE:

SYDNEY VIA VIDEO LINK TO ADELAIDE

THE COURT ORDERS THAT:
1.The stay of execution in favour of Mr Bertram made on 25 June 2013 be discharged.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 97 of 2013

BETWEEN:
WEALTHSURE PTY LIMITED ABN 93 097 405 108
First Appellant

DAVID BERTRAM
Second Appellant

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: [2013] FCA 847
Decision Date: 21 August 2013

CaseChat Overview and Summary

Wealthsure Pty Limited, the first appellant, applied to the Federal Court for the discharge of a stay on the execution of a judgment against Bertram Selig, the second appellant. The dispute arose from a decision of the Full Court of the Federal Court, which had stayed execution of the judgment in favour of Wealthsure and against Selig. The Official Trustee had been appointed as trustee of Selig's bankrupt estate and had elected to discontinue the appeal against Wealthsure's judgment. The court needed to decide whether the application to discharge the stay was within the scope of a liberty to apply provision and whether Wealthsure would suffer prejudice if the stay was discharged.

The court found that the Official Trustee's election to discontinue the appeal meant that there was no longer any appeal pending that could affect the execution of the judgment. The court also found that Wealthsure would not suffer prejudice if the stay was discharged, as they were still able to pursue their judgment against Selig through other means, such as garnishee proceedings. The court held that the application was within the scope of a liberty to apply provision and that the stay of execution in favour of Selig should be discharged.

The court discharged the stay of execution in favour of Selig, allowing Wealthsure to proceed with executing its judgment against him. The court emphasised that the decision was based on the specific circumstances of this case and did not set a precedent for future cases. The court also noted that the decision did not affect the rights of any other parties involved in the proceedings. Overall, the court's decision provided clarity on the scope of liberty to apply provisions and the circumstances in which a stay of execution may be discharged.

Orders

Orders of the court

1. The stay of execution in favour of Mr Bertram made on 25 June 2013 be discharged.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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.

Citation:		Wealthsure Pty Limited v Selig (No 2) [2013] FCA 847
Parties:		WEALTHSURE PTY LIMITED ABN 93 097 405 108 and DAVID BERTRAM v RONALD SELIG AND JANNA SELIG, RICHARD WILLIAM SPENCER, SILVANA PEROVICH, MARK RICHARD NORTON, PETER MAURICE TOWNLEY, NEOVEST LIMITED (IN LIQUIDATION) ACN 104 915 906, NORTON CAPITAL PTY LIMITED (IN LIQUIDATION) ACN 086 207 169, DANIEL GEOFFREY LILLEY, DAMIEN BERNARD GREER, ROBERT NOEL GALLAGHER, STEPHEN JAMES DICKENS and MICHAEL JOSEPH CROUCH
File number:		SAD 97 of 2013
Judge:		BESANKO J
Date of judgment:		21 August 2013
Catchwords:		PRACTICE AND PROCEDURE – Application to discharge stay on execution of judgment – where Official Trustee appointed trustee of second appellant’s bankrupt estate – where Official Trustee has elected to discontinue appeal – whether application is within the scope of a liberty to apply provision – whether first appellant will suffer prejudice. Held: The stay of execution in favour of the second appellant be discharged.
Legislation:		Bankruptcy Act 1966 (Cth) ss 60(2), 117, 178 Federal Court Rules 2011 (Cth)
Cases cited:		Abigroup Limited v Abignano (1992) 39 FCR 74 Maritime Union of Australia v Geraldton Port Authority [2000] FCA 1342 Selig v Wealthsure Pty Limited [2013] FCA 685 Wealthsure Pty Limited v Selig [2013] FCA 628
Date of hearing:	13 August 2013
Date of last submissions:	13 August 2013
Place:	Sydney (heard in Adelaide)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	14
Counsel for the First Appellant:	Mr T Cox
Solicitor for the First Appellant:	Cosoff Cudmore Knox
Counsel for the Second Appellant:	The Second Appellant did not appear
Counsel for the First Respondents:	Mr P Heywood-Smith QC with Mr D Riggall
Solicitor for the First Respondents:	Radbone and Associates
Counsel for the Second to Twelfth Respondents:	The Second to Twelfth Respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 97 of 2013

JUDGE:	BESANKO J
DATE OF ORDER:	21 AUGUST 2013
WHERE MADE:	SYDNEY VIA VIDEO LINK TO ADELAIDE