Burnell-Slorach v Mansell

[2008] FCA 956

FEDERAL COURT OF AUSTRALIA

Burnell-Slorach v Mansell [2008] FCA 956

LOUISE JANE BURNELL-SLORACH and GWEN IRIS WEBER v RICHARD GELL MANSELL

VID 429 OF 2008

HEEREY J

20 JUNE 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 429 OF 2008

BETWEEN:

LOUISE JANE BURNELL-SLORACH
First Applicant

GWEN IRIS WEBER
Second Applicant

AND:

RICHARD GELL MANSELL
Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	20 JUNE 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 429 OF 2008

BETWEEN:

LOUISE JANE BURNELL-SLORACH
First Applicant

GWEN IRIS WEBER
Second Applicant

AND:

RICHARD GELL MANSELL
Respondent

JUDGE:	HEEREY J
DATE:	20 JUNE 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against an order of the Federal Magistrates Court made on 16 June 2008.  The order was made on the hearing of a motion filed on 13 June.  The motion was filed by Ms Louise Jane Burnell-Slorach although the order has as applicants Marjohn Nominees Pty Ltd and Handin Nominees Pty Ltd.  These apparently are companies connected with Ms Burnell.  Ms Burnell appeared on the hearing of the present application.

2. The motion of 13 June sought the following orders:

   1.That the court direct the Order of Burchardt FM made on 18 March [sic – February?] 2008 be set aside.

   2.That the company directors be able to be given access to the property to enable negotiations to be taken through the Directors or persons nominated, such as Mr Robson, accountant.

3. The property in question is the property at 5 Karina Street, Frankston South.  Ms Burnell is bankrupt and as a result that property has vested in her trustee in bankruptcy, the respondent Mr Richard Mansell.  Ms Burnell says that she was unable to find directions to get to the courtroom on 16 June and an order was made in her absence. 

4. The order of 16 June 2008 is in the following terms:

   1.The Notice of Motion filed on 13 June 2008 is dismissed pursuant to Rules 13.03A(c) and 13.10 of the Federal Magistrates Court Rules 2001.

   2.The Director(s) of the applicant company are restrained from issuing any further proceedings in this Court against Richard Gell Mansell (as trustee of the estate of Louise Jane Burnell-Slorach) without first obtaining leave of a Federal Magistrate.

   3.The applicants to the Notice of Motion filed on 13 June 2008 pay the Respondent, Richard Gell Mansell, his costs of and incidental to the Notice of Motion.

5. I agree with Mr Noonan of counsel, who appeared for the respondent, that there is no arguable prospect of success in the proposed appeal and that no injustice would be caused by the refusal of leave.  The complaint about the order of 18 February, which was an order that Ms Burnell vacate the property, has already been the subject of an application to set aside.  That application was heard on 21 May, with Ms Burnell being present, and was dismissed. 

6. Mr Noonan indicated the question of access to the property in order for Ms Burnell to obtain certain documents has already been resolved.  In any event, it is not a matter for the court to direct negotiations over such access.  Negotiations may take place between persons on behalf of the companies and the trustees.  They are free to negotiate if they wish.

7. If Ms Burnell wishes to pursue her complaint about the order of 16 June being made in her absence, application can be made to the Federal Magistrates Court under Rule 16.05(2)(a).  It may be that she and/or the companies will need leave to make such an application but, again, that is a matter for the Federal Magistrates Court. 

8. The application for leave to appeal will be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:        20 June 2008

Counsel for the First Applicant:	The First Applicant appeared in person
Counsel for the Respondent:	P S Noonan
Solicitor for the Respondent:	Kahns Lawyers

Date of Hearing:	20 June 2008
Date of Judgment:	20 June 2008