Anderson v Peldan

[2004] QSC 335

SUPREME COURT OF QUEENSLAND

CITATION:

Anderson & Anor v Peldan & Anor [2004] QSC 335

PARTIES:

BERNADETTE MARIE ANDERSON & ROBYN JENNIFER MOLLEE

(applicants)
v
MICHAEL PELDAN & MORGAN LANE

(respondents)

FILE NO/S:

BS7073 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

24 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

16 September 2004

JUDGE:

Philippides J

ORDER:

The proceedings herein be struck out.

CATCHWORDS:

BANKRUPTCY -  JURISDICTION – where claim brought in the Supreme Court on behalf of a deceased’s estate for a declaration that the estate was entitled to certain proceeds of sale of a property – where application brought by trustees in bankruptcy of the deceased’s husband in the Federal Magistrates Court claiming an entitlement to those proceeds – whether Supreme Court proceeding should be dismissed or stayed pending determination of the Federal Magistrates Court application – whether proceeding within the exclusive jurisdiction of the Federal Court or Federal Magistrates Court

Bankruptcy Act 1966 (Cth), s 5, s 27, s 31, s 121, s 122
Property Law Act 1974 (Qld), s 228

Denby (as T’ee in Bankruptcy of the Estate of S S Wing Tam) [2002] QSC 117
Green v Schneller [2001] NSWSC 897
Sutherland v Brien (1999) 149 FLR 321
Scott v Bagshaw [2000] 99 FCR 573

COUNSEL:

M Martin for the applicants

L Jurth for the respondents

SOLICITORS:

Quinn & Scattini for the applicants
Klar & Klar for the respondents

PHILIPPIDES J:

The Application

1. This is an application brought by the trustees in bankruptcy of the estate of Mr Raymond Kenneth Pinna (“the bankrupt”) for an order that the proceedings herein be struck out on the ground that there are proceedings pending in the Federal Magistrates Court which will ultimately determine issues between the parties and which raise claims in respect of which this court lacks jurisdiction.  Alternatively, orders are sought to stay the within proceeding permanently or pending the determination of the Federal Magistrates Court proceeding.  The application is resisted by the respondents, who are the joint legal personal representatives of the estate of Mrs Pinna, the late wife of the bankrupt. 

Background Facts

1. The following matters are not in contention.  In December 1995, the bankrupt and the deceased acquired as joint tenants a house at Carindale.  In September 2003, the joint tenancy was severed upon the registration of a Form 1 Transfer, whereupon the deceased and the bankrupt became the registered owners of the property as legal tenants in common in equal shares and thereafter held the equitable interest in the property in equal shares.  The bankrupt’s wife died on 12 February 2004 and thereafter the registered owners of the property as tenants in common were the bankrupt and the respondents.  In March 2004, the property was sold to a third party for $600,000.

1. On 21 April 2004, the applicants were appointed the trustees in bankruptcy of the estate of the bankrupt.  Of the net proceeds of sale of the property, one half was paid to and held by the applicants in their…