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Proctor : August 2015
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45 PROCTOR | August 2015 with Robert Glade-Wright Citing High Court authority which, it was noted, her Honour failed to address [73], their Honours (at [67]) said that the principles to be applied in determining whether a party to a contract has repudiated that contract entitling the other party to terminate it are that “there must be either a breach or an anticipatory breach of an essential term of the contract, or a sufficiently serious breach of a non-essential term” and “the other party must be ready and willing to complete the contract”. Their Honours said [86] that it was “incontrovertible” that since “the breakdown of the marriage ... the wife had not been prepared to sell the ... property”, adding [94] “that what the husband said in ... his affidavit ... evinces an intention not to be bound by the term of the agreement ... to share the cost of placing the Town A property in ‘good repair’ for the purposes of its sale. However, [w]e do not accept that either the relevant term was an essential term or that the anticipatory breach was sufficiently serious”. Delivering separate reasons and agreeing that the appeal should be allowed May J said (at [26]) that “[i]t was open to the wife to effect repairs herself and then seek that sum be deducted from the sale proceeds or, if not agreed, by way of damages. The wife was not entitled to rescind, she did not intend to have the house readied for sale by attending to repairs, rather she intended to continue living in the house.” Property – husband “avoids consequences” of his contravention of orders by declaring himself bankrupt In Doolan [2015] FCCA 634 (20 March 2015) the wife filed applications alleging the husband’s contravention of Judge Small’s orders that he pay the wife pursuant to a s90D financial agreement 12 monthly instalments of $25,000, outgoings on the wife’s home and costs. The husband declared himself bankrupt on 9 September 2014, the day before the hearing of the contravention hearing, yet the court proceeded to hear the case and find that the husband had contravened four orders. At the hearing of the wife’s application alleging contravention of the costs order the court said (at [58]-[63]): “I am satisfied ... that the debts ... owed by the husband on 10 September 2014 ... are ‘provable debts’ under s82(1) of the Bankruptcy Act. Section 58(1) states that any property owned by a bankrupt at the date of his bankruptcy vests immediately in the Trustee in Bankruptcy ... In this case a Trustee ... was appointed for the husband on 9 September 2014. Section 58(3) [provides that] ‘after a debtor has become a bankrupt, it is not competent for a creditor ... to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or ... except with the leave of the court ... to commence any legal proceeding in respect of a provable debt or take any fresh step in such a proceeding’. “It was obvious on 10 September 2014 that the husband was, on that day, a bankrupt. Indeed his Trustee was in court, if only to advise the court that he did not intend to intervene in the proceedings. I am also satisfied that the remedy sought by the wife on 10 September 2014 was a remedy ‘against the person or the property of the bankrupt in respect of a provable debt’ (Melnik [2005] FCAFC160). Therefore, and very unfortunately for her, it was ‘not competent’ for the wife on that day to ‘enforce any remedy’ against the husband who was on that day a bankrupt, and it follows that I was in error in allowing the hearing to proceed and making findings in relation to the first Contravention Application.” The orders were discharged and both applications dismissed with a right of reinstatement, the court declining leave to proceed under s58(3)(b) in default of notice to the husband of the wife’s intention to seek leave, the court saying ([74]-[75]): “... By declaring himself bankrupt ... the husband has managed to avoid any consequences which might flow from his non-compliance with court orders. The consequences for the wife, however, are very serious, in that she is confronted with considerable debt as a result of legal fees ... [and] the possibility of losing her house due to the husband’s failure to pay the mortgage.” Robert Glade-Wright is the founder and senior editor of The Family Law Book, a one-volume looseleaf and online family law service (thefamilylawbook.com.au). He is assisted by Queensland family lawyer Craig Nicol. Family law Will Precedents Guide Volume 4 Access basic will precedents, letters and notes designed for Queensland legal practitioners with QLS’s Will Precedents Guide – Volume 4. • 19 will precedent templates • Plain English • Available in Microsoft Word • Compatible with Windows and Mac Regular price: $300 Discounted member price: $220 Member discount: 27% Order this valuable resource for your firm today! >> qls.com.au/will-precedents-guide back to contents
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