Benefit Strategies Group v Prider

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BENEFIT STRATEGIES GROUP v PRIDER [2005] FMCA 1117

BANKRUPTCY – Notice opposing petition – application for transfer to Federal Court – application refused.

Foreign Judgments Act
Federal MagistratesCourt Act 1999, ss.39(1), 39(2), 39(3), 39(3)(d), 39(3)(e), 104(4)
Federal Magistrates Court Rules, r.8.02
Federal Court of Australia Act, s.25(1A)

Guss v Johnstone [2000] FCA 1593
Jennings Construction Ltd  v Burgundy Royale Investments Pty Ltd  (1986) 69 ALR 265
Deputy Commissioner of Taxation v Zizza [1999] FCA 1226
Commonwealth Bank of Australia v Healey [1999] FCA 833
Parras Holdings Pty ltd v Commonwealth Bank of Australia [1999] FCA 644
Finikotis v Sandhurst Trustee [2002] FCA 341

Applicant: BENEFIT STRATEGIES GROUP

Respondent: TREVOR LAWRENCE PRIDER

File Number: ADG 16 of 2005

Judgment of: Lindsay FM

Hearing date: 29 July 2005

Date of Last Submission: 4 August 2005

Delivered at: Adelaide

Delivered on: 9 August 2005

REPRESENTATION

Counsel for the Applicant: Mr J Wells QC

Solicitors for the Applicant: Fisher Jeffries

Counsel for the Respondent: Mr Ross-Smith

Solicitors for the Respondent: Sykes Bidstrup

ORDERS

1. That the application for transfer of the proceedings to the Federal Court is refused.

2. That all applications by the Debtor for costs, including the costs of this application and of earlier attendances before Registrar Christie, be reserved.

3. Liberty to either party to apply within 7 days as to consequential orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SOUTH AUSTRALIA

ADG 16 of 2005

BENEFIT STRATEGIES GROUP

Applicant

And

TREVOR LAWRENCE PRIDER

Respondent

REASONS FOR JUDGMENT

1. On 29 July 2005 I made myself available at short notice to hear an application by the applicant for a transfer of these proceedings to the Federal Court.  The application had been made to Registrar Christie.  She considered it appropriate for me to determine the application.

2. The "proceedings" are constituted by a Further Notice of Intention to Oppose Petition filed on 18 July 2005.

3. The hearing of an earlier Notice of Intention to Oppose Petition became otiose when the appeal said to ground the opposition was heard and determined by the Full Court of the South Australian Supreme Court.  It was determined adversely to the debtor.

4. The petitioning creditor obtained a judgment against the debtor in California.  Parts of the judgment debt were the subject of enforcement proceedings in the South Australian Supreme Court.  That court was exercising its general jurisdiction to enforce judgments, rather than any specific jurisdiction arising under the Foreign Judgments Act.  On 15 November 2004, Gray J entered summary judgment against the debtor.

5. I heard an application to extend compliance with the bankruptcy notice, which was a consequence of the order of Gray J on 24 January 2005.  That was in proceedings numbered ADG 256 of 2004.  I refused the application.

6. The Full Court of the Supreme Court dismissed the debtor's appeal from Gray J's judgment.  An application for special leave to appeal to the High Court has been filed.  An application to set aside the Californian judgment has been adumbrated.

7. The debtor…