Cant v Goldsmiths Barristers and Solicitors Pty Ltd

[2010] VSC 562

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

PRACTICE COURT

No. 3769 of 2010

ANTHONY ROBERT CANT (in his capacity as Trustee of the bankrupt Estate of KARL ETL, also known as KAREL ETL)	Applicant
v
GOLDSMITHS BARRISTERS & SOLICITORS PTY LTD and STARNET LAWYERS PTY LTD	Respondents

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2010
DATE OF RULING:	2 December 2010
CASE MAY BE CITED AS:	Cant v Goldsmiths Barristers & Solicitors Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 562

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COMMERCIAL – Distribution of the moneys representing the proceeds of sale of the estate of a bankrupt paid into court - Purported appellant not a party to the proceeding - Appellant has no claim on the estate - Appellant has no standing to appeal - Abuse of process – Appeal struck out - Bankruptcy Act 1966 (Cth).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J L Evans	White Cleland Lawyers
For the First Defendant	Mr M Goldblatt	Goldsmiths Lawyers
For the Second Defendant	Mr J Selimi	Starnet Legal Pty Ltd

HIS HONOUR:

1. In this matter Anthony Robert Cant has made application for an order for the payment of funds out of court pursuant to the Bankruptcy Act 1966 (Cth). The money in the Court represents the proceeds of sale of the estate of a bankrupt and claims have been made with respect to that money by Mr Cant as trustee of the bankrupt estate, and by two firms of solicitors who have previously acted for the bankrupt and who have charges over the property owned by him. A number of deregistered entities associated with Mr Bruno Strangio and, it seems, Paolo Seno have also sought to become involved in the proceeding.

1. On 2 September 2010 Mr Strangio sought leave to appear for a series of parties, namely Millhouse General & Mercantile Pty Ltd, Paradise Constructions & Co Pty Ltd, Business Debt Recovery Service Pty Ltd and Total Retail Australia Pty Ltd.  Mahony AsJ refused that application on the grounds that Mr Strangio was not a legal practitioner and he has no connection registered with ASIC with respect to any of the applicants.  Furthermore, the fourth applicant was incorporated on 10 November 2009 and had no claim on the land, the sale of which led to the payment into court.

1. On 2 September 2010, Mahony AsJ also gave further directions in the matter and adjourned the underlying substantive application until today before the Associate Justice sitting in Court 2.  His Honour noted, under ‘Other Matters’, the following: 

The adjournment is for the purposes of the orders made this day in the nature of directions, but also to enable the due completion of any application for administrative or curial reinstatement of the registration of the three companies first named in the summons filed on 20 August 2010 and dismissed this day.[1]  In the event that on the adjourned date there is no application by summons supported by affidavit filed and served for those companies after reinstatement of their registration, the trial of the proceeding will continue without regard to any claim that they may have been able, if registered and legally represented, to support.

[1]The three companies first mentioned in [2] above.

1. In summary, Mahony AsJ refused leave to Mr Strangio to appear for the parties that he purported to represent and dismissed their application, but adjourned the substantive underlying application to provide time in which the companies in issue might be reinstated and further application might be made on their behalf.

1. The matter came on before Zammit AsJ today.  She dismissed a further application to join Business Debt Recovery Services Pty Ltd as a party to the proceeding in order to make a claim upon the funds in Court.  She recorded under ‘How Obtained’ and ‘Other Matters’ in the order the following: 

How Obtained

Oral application by Mr Paul Seno, an unqualified person for joinder of deregistered company as a party to this proceeding.

Other Matters

1.Mr Paul Seno appeared before the Court on behalf of Business Debt Recovery Services Pty Ltd.

2.Mr Seno said he was a director of Business Debt Recovery Services Pty Ltd.  He informed the Court that the company’s registration had not been re-instated .

3.An ASIC search exhibited to the affidavit of Ms Danielle Jane McCredden sworn 1 September 2010 confirms that Mr Seno ceased being a director of the company on 5 November 2008.

4.The company was deregistered on 22 November 2009.  The company has not been reinstated.

5.Mr Seno sought leave to have the company added as a defendant to the proceeding.

6.Mr Seno’s application is dismissed on the basis that the company is deregistered and he was not a director of the company at the time it was deregistered.

7.Mr Strangio sought leave to represent Mr Seno.  Leave was not granted.

1. Her Honour went on the make orders for the distribution of the moneys in court.  It seems, however, that Mr Seno saw fit to immediately file purported notices of appeal against the orders of Her Honour.  Those notices of appeal are directed to each of the parties in favour of whom an order was made today, namely Anthony Robert Cant, Goldsmiths Barristers and Solicitors Pty Ltd and Starnet Legal Pty Ltd. 

1. No application was made for a stay of her Honour's orders and the parties in favour of whom her Honour made orders now seek an order from me striking out the notices of appeal.  Mr Goldblatt has advised me that the application to strike out was foreshadowed in Court 2 in the presence of Mr Seno.

1. Those associated with Business Debt Recovery Services Pty Ltd were placed on notice by Mahony AsJ as to the proper course to follow, but elected not to do so.

1. In my view Mr Seno was not a party to any proceeding before Zammit AsJ today.  He has no claim on the estate and has no standing to appeal.  For those reasons the purported notices of appeal are incompetent and an abuse of process and should be struck out. 

1. The formal order of the Court will be that the notice of appeal purportedly filed by Paolo Seno on 2 December 2010 be struck out as incompetent and an abuse of process.

1. I will reserve the costs of today.