Winn v Leigh - [2014] FCCA 573

FEDERAL CIRCUIT COURT OF AUSTRALIA

WINN v LEIGH

[2014] FCCA 573

Catchwords:
BANKRUPTCY – Trial – adjournment – costs.

Legislation:
Bankruptcy Act 1966

Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27

SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146

Applicant:

JULENE WINN

Respondent:

DAVID LEIGH

File Number:

BRG 1127 of 2012

Judgment of:

Judge Coates

Hearing date:

14 February 2014

Date of Last Submission:

14 February 2014

Delivered at:

Brisbane

Delivered on:

14 February 2014

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Ms A Wheatley

Solicitors for the Respondent:

Rodgers Barnes & Green Lawyers

ORDERS

That the Applicant file and serve any further affidavit material that she intends to rely upon by 4:00pm 28 February 2014.
That the Respondent file and serve any further affidavit material that he intends to rely upon by 4:00pm 14 March 2014.
That the Applicant file and serve any affidavit material in reply that she intends to rely upon by 4:00pm 19 March 2014.
That the Respondent is granted leave to file an Amended Grounds of Opposition.
That the Application be adjourned to 9:30am on 24 March 2014 for final hearing (with an estimated hearing time of 1 day) in the Federal Circuit Court of Australia sitting at Brisbane.
That the Applicant pay the Respondent’s cost of and incidental to these proceedings on an indemnity basis fixed in the sum of $7982.00 by no later than 4.00pm on 14 March 2014.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 1127 of 2012

JULENE WINN

Applicant

And

DAVID LEIGH

Respondent

REASONS FOR JUDGMENT

This matter was set down for trial today. In October, several directions were made in order to have the matter ready. The applicant has not complied with the directions. Material on the applicant’s application is incomplete. Earlier this morning, she said she would seek an adjournment. The respondent says that material in the respondent’s case has not been filed because the applicant has not complied with the directions. I fully accept that a respondent cannot file material in answer to evidence and propositions being put by an applicant if the applicant has not put that evidence before the Court.
The respondent is prepared to proceed today. The respondent does not seek an adjournment, but if I grant an adjournment, the respondent seeks costs thrown away and seeks that if those costs are not paid, the matter be stayed or dismissed.
In Aon Risk Services Australia Limited v The Australian National University [2009] HCA 27, the High Court seems to be setting a new and more rigid path for the lower courts to follow in relation to adjournments. At paragraph 5 of his judgment, the Chief Justice said:
In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of…

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 Winn v Leigh

Details

AGLC: Winn v Leigh [2014] FCCA 573
Case: [2014] FCCA 573
Decision Date: 14 February 2014

CaseChat Overview and Summary

In *Winn v Leigh*, the Supreme Court of Queensland was asked to determine a dispute between the parties concerning the interpretation of a deed of settlement. The deed was entered into following earlier litigation between the parties, and its terms were central to the present application.

The primary legal issue before the Court was whether the respondent, Mr. Leigh, had breached the terms of the deed of settlement by failing to pay the applicant, Ms. Winn, a sum of money that was purportedly due under the deed. This required the Court to construe the relevant clauses of the deed to ascertain the parties' intentions and the precise obligations that arose from them.

Judge Coates found that the deed of settlement did not impose an obligation on Mr. Leigh to pay Ms. Winn the sum in question. His Honour's reasoning focused on the specific wording of the deed, concluding that the language used did not create a present or future debt owed by Mr. Leigh to Ms. Winn. The Court therefore held that no breach of the deed had occurred.

Orders