Comit Farm Produce Pty Ltd v Macks

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COMIT FARM PRODUCE PTY LTD v MACKS [2005] FMCA 65

BANKRUPTCY – Preference payments – joinder of parties – amendments to application.

Bankruptcy Act 1966, ss.122 & 139ZS
Partnership Act
Federal Magistrates Court Rules 2001, rr.7.01 & 11

Image Color (SA) (In liquidation) v Curtis [2000] SASC 316

Applicant: COMIT FARM PRODUCE PTY LTD

Respondent: PETER IVAN MACKS AS TRUSTEE OF THE BANKRUPT ESTATE OF EFSTRATIOS VALAMIOS & CONSTANTINA VALAMIOS

File Number: ADG 291 of 2003

Judgment of: Lindsay FM

Hearing dates: 7 & 8 December 2004

Date of Last Submission: 8 December 2004

Delivered at: Adelaide

Delivered on: 2 February 2005

REPRESENTATION

Counsel for the Applicant: Mr Dalchin

Solicitors for the Applicant: Mr Minicozzi

Counsel for the Respondent: Mr Marsh

Solicitors for the Respondent: Fisher Jeffries

ORDERS

1. The application seeking leave to amend the application dated 19 December 2003 to add George Valamios and Chris Valamios as respondents is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 291 of 2003

COMIT FARM PRODUCE PTY LTD

Applicant

And

PETER MACKS AS TRUSTEE OF THE BANKRUPT ESTATE OF EFSTRATIOS VALAMIOS & CONSTANTINA VALAMIOS

Respondent

REASONS FOR JUDGMENT

1. This is an application by the applicant for leave to amend the application filed on 19 December 2003. The amendments sought relate to the addition of two persons, namely George Valamios and Chris Valamios as respondents and relief against those additional respondents.

2. The matter is heard concurrently with an identical application in proceedings numbered ADG 290 of 2003 in which the applicant is J. Collins Transport Pty Ltd.

3. The matter is listed for trial on 1 March 2005.

4. The application was supported by an affidavit of the applicant’s solicitor sworn on 14 October 2004.  I also had regard to other material filed on behalf of the applicant and especially the affidavit of the applicant’s solicitor sworn on 9 March 2004 with its various annexures.

5. I heard submissions from Counsel for each of the parties on 8 December 2004 when I reserved my judgment in relation to the application.

6. The present respondent is the Trustee of the estate of each of the parents of the proposed respondents.  They became bankrupt on 21 July 2003 and 15 September 2003 respectively.

7. The bankrupts are referred to hereinafter as the “the parents”.  The proposed respondents are referred to hereinafter as “the sons” unless they are referred to individually.

8. The parties have been litigating in proceedings in the District Court and in the Supreme Court (and also in the Magistrates Court, though such proceedings are not significant for the purposes of this application).

9. The applicant instituted proceedings in the District Court of South Australia against the parents on 30 January 2002. The claim was for monies owing by the parents in respect of their operation of a business known as V & P Produce. The applicant provided goods to V & P Produce. The claim was for an amount in excess of $1.8 million. The applicant relied in the District Court…