FEDERAL COURT OF AUSTRALIA

Shephard v Robson (No 2) [2015] FCA 1443

THE COURT ORDERS AND DECLARES THAT:

1.    William Robson be released from his undertaking to the Court given on 2 July 2014 not to distribute any funds received from James Roger and Stephen Hall from the sale of the property known as 53 Fairview Road, Sapphire Beach, NSW.

2.    The amount of $8,577.59 being 6% of the net proceeds of sale attributable to 10/12ths of the property known as 53 Fairview Road, Sapphire Beach, NSW be declared protected moneys under the Bankruptcy Act 1966 (Cth).

3.    The Respondent is to pay the Applicant the sum of $8,577.59 within 28 days.

4.    Each party is to bear their own costs of the proceeding.

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

REASONS FOR JUDGMENT

1    I handed down reasons for judgment in this proceeding on 5 November 2015, holding (at [117]) that it was fair to attribute 6% of a 10/12th part of the net proceeds of sale of the property known as 53 Fairview Road, Sapphire Beach, NSW (“Sapphire Beach property”) to protected money outlaid by Mr Shephard to purchase his interest in that property (Shephard v Robson [2015] FCA 1194).

2    I directed the parties to confer and to file draft minutes of orders reflecting the reasons. The parties filed draft minutes of orders which are identical except in relation to the central question of the amount to be declared protected monies under the Bankruptcy Act 1966 (Cth).

3    Mr Shephard proposed an order that $12,000 be declared protected monies, presumably in reliance on [116] of my reasons for judgment. Mr Robson proposed an order that $8,577.59, being 6% of the net proceeds of sale attributable to 10/12ths of the Sapphire Beach property be declared protected monies. I have made orders in accordance with the draft minutes provided by Mr Robson as they properly reflect my reasons.

4    At the time I handed down my reasons I was not satisfied on the materials that all of the expenses Mr Robson proposed to deduct from the proceeds of sale of the Sapphire Beach property were properly attributable to the sale. To address my concern I ordered Mr Robson to file a further affidavit providing up-to-date information setting out all of the costs associated with or related to the sale.

5    Mr Robson has now filed a further affidavit sworn 20 November 2015 and I am satisfied that all of the expenses he proposes to deduct from the proceeds of sale of the Sapphire Beach property properly relate to the sale. I am therefore satisfied that the sum of $142,959.78 is the net proceeds of the sale of a 10/12th part of that property and I calculate 6% of that sum to be $8,577.59. I have ordered that amount to be paid to Mr Shephard within 28 days.

6    Mr Robson also filed submissions in relation to costs and sought an order that each party bear their own costs of the proceeding. Mr Shephard did not file submissions on costs but he too sought an order that each party bear their own costs. For the reasons advanced by Mr Robson in his submissions an order that each party pay their own costs is appropriate.

Associate:

Dated:    16 December 2015