Barlaw Pty Ltd Trading As Barrak Lawyers v Nicholas Crouch as trustee of the Estate of Mark Anthony Bartolo

[2014] HCASL 114

BARLAW PTY LTD TRADING AS BARRAK LAWYERS

v

NICHOLAS CROUCH AS TRUSTEE OF THE ESTATE OF MARK ANTHONY BARTOLO

[2014] HCASL 114
S200/2013

1. The applicant is a creditor of the bankrupt estate of Mark Anthony Bartolo.  By application filed on 18 January 2011, the applicant sought, inter alia, the removal of the respondent as trustee of that estate on the ground of actual misconduct or an inquiry into the respondent's conduct as trustee.

2. On 29 July 2011, the Federal Magistrates Court of Australia (Driver FM) dismissed the applicant's application.  Driver FM was not persuaded that the assertions made by the applicant warranted the respondent's removal as trustee or an inquiry into his conduct.  Nonetheless, Driver FM ordered that the respondent's offer to resign be accepted.

3. On 25 September 2013, the Federal Court of Australia (Nicholas J) dismissed the applicant's appeal from the decision of Driver FM.  Nicholas J held that it was not appropriate to allow the applicant to make allegations that had not been raised before Driver FM.  His Honour rejected the applicant's other grounds of appeal.

4. The applicant now seeks special leave to appeal to this Court on the grounds that Nicholas J applied the wrong legal test for the removal of a trustee and erred in excluding evidence that went to the respondent's partiality.  This application is an inappropriate vehicle to consider the question of the correct legal test for removal of a trustee, as this issue was not ventilated in the courts below.  The applicant would enjoy insufficient prospects of success to warrant a grant of special leave.  Special leave is refused.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
19 June 2014 P.A. Keane