Case: Rogers Trading as Living Space Building v Dale &amp; Meyers Timber Trade Centre Pty Ltd [2005] FCA 862
Outcome: cited
Various disputes arose in relation to the deed of settlement and the implementation arrangements contemplated by the deed which resulted in further controversy between the Applicant and the Respondents. In particular, controversy arose concerning the requirement contained in the deed of settlement of 4 August 2004 for Mr Rogers to sell the Toogoom property to ALCPL by, on or about 15 August 2004 with clear title. It seems that the title was subject to enforcement processes in respect of two writs, one issued by Dale &amp; Meyers Timber Trade Centre Pty Ltd and the other by Mr Scott Petersen seeking the recovery of certain debts. ALCPL had discharged the first mortgage but could not secure clear title due to the writs of attachment. The second matter of controversy concerned arrangements in relation to the purchase by Mr Rogers of two further lots at Toogoom located within an estate called Fraser Waters Estate (Lots 41 and 127) and the arrangements between Mr Rogers, Mr Hare and Mrs Judith Hare concerning the payment of deposits for the purchase of those lots, the ultimate settlement of the purchase for each lot and the basis upon which the title would be held and by whom. 14 On 15 September 2004, a second deed of settlement was entered into between Mr Rogers, ALC, ALCPL, Mr Hare and Mrs Judith Hare which provided for certain loans to be made to Mr Rogers, the acquisition and on-sale of Lots 41 and 127 and the distribution of the ultimate net proceeds of sale of Lots 41 and 127 after the payment of identified outgoings with ultimately the net profit, so defined, to be distributed equally between Mr Rogers and Mr Hare. One of the outgoings to be discharged from the proceeds of sale of Lots 41 and 127 was the performance of an indemnity obligation assumed by Mr Rogers in favour of ALCPL concerning the discharge of the writs of attachment which Mr Rogers had either failed to discharge or had not been able to originally discharge. 15 Otherwise, the deed of 15 September 2004 preserved the operation of the deed of 4 August 2004. 23 On 23 February 2005, Deputy Registrar Baldwin made an order for the sequestration of the estate of Mr Rogers based upon a failure to comply with a bankruptcy notice founded upon a default judgment in favour of a creditor. An application for review of that order was filed on 25 February 2005 in the Federal Magistrates Court. On 15 March 2005, Federal Magistrate Baumann made an order staying the sequestration order pending the determination of the application for review. On 19 May 2005, Federal Magistrate Baumann dismissed the application for review and discharged the stay order of 15 March 2005. On 25 May 2005, Mr Rogers appealed to the Federal Court from the order of Federal Magistrate Baumann dismissing the application for review. Mr Rogers made a further application for a stay of the sequestration order pending the determination of the appeal. His Honour Justice Dowsett on 14 June 2005 dismissed the motion for a stay, ordered Mr Rogers to pay the costs of the motion and made directions in relation to the appeal: Rogers Trading as Living Space Building v Dale &amp; Meyers Timber Trade Centre Pty Ltd [2005] FCA 862. On 5 December 2005, His Honour Justice Dowsett heard and determined the appeal by Mr Rogers, dismissed the appeal and ordered Mr Rogers to pay the costs of the appeal: Rogers v Dale &amp; Meyers Timber Trading Centre Pty Ltd [2005] FCA 1891.