Coomera Resort Pty Ltd v Bond, Paul Levinson

[1997] FCA 770

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
)
QUEENSLAND DISTRICT REGISTRY            )	QG 7439 of 1997
)
GENERAL DIVISION  )

BETWEEN:	COOMERA RESORT PTY LTD (ACN No 050 911 156)
Applicant
AND:	Paul Levinson BOND
First Respondent
AND:	The Official Trustee in Bankruptcy
Second Respondent

JUDGE(s):     Spender J
PLACE:        Brisbane
DATE:          8 August 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The sending on 24 July 1997 of the application filed on 22 July 1997 and the affidavits of Peter Bernard Hickey and Craig Anthony Wilkins, both filed on 22 July 1997 by air-mail to each of the following addresses:

(a)Mr Paul Levinson Bond, 4079 Blackpoint Road, Honolulu, HI 96816 USA;

(b)Mr Paul Levinson Bond, P O Box 570 Captain Cook, HI 96704 USA

(c)Mr Paul Levinson Bond, care of Religion of Jesus Church, P O Box 828 Captain Cook, HI 96704 USA,

and the delivery of those affidavits herein referred to the Official Trustee on 31 July 1997 be sufficient service of this application and those affidavits;

1. Coomera Resort Pty Ltd have leave, pursuant to section 58(3)(b) of the Bankruptcy Act 1966 to proceed against Paul Levinson Bond with its claim for equitable compensation in the action commenced in the Supreme Court of Queensland by writ of summons number 1321 of 1994;

1. This order be served upon the Official Trustee;

1. Paul Levinson Bond have 28 days after such service upon the Official Trustee to apply to have this order set aside should he be so minded. 

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

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA  )
)
QUEENSLAND DISTRICT REGISTRY            )	QG 7439 of 1997
)
GENERAL DIVISION  )

BETWEEN:	COOMERA RESORT PTY LTD (ACN No 050 911 156)
Applicant
AND:	Paul Levinson BOND
First Respondent
AND:	The Official Trustee in Bankruptcy
Second Respondent

JUDGE(s):     Spender J
PLACE:        Brisbane
DATE:          8 August 1997

REASONS FOR JUDGMENT

I have before me an application filed 22 July 1997 seeking leave under s 58(3)(b) of the Bankruptcy Act 1966 (‘the Act’) to proceed against a bankrupt, Paul Levinson Bond, with the applicant’s claim for equitable compensation in Supreme Court action 1321 of 1994. The applicant also seeks that service of the application and supporting affidavits be deemed to have already been served upon Mr Bond by the sending, on 24 July 1997, of those documents by airmail to certain addresses in the United States of America.

There are questions of some difficulty in relation to the service of this application but, having regard to the history of the matter and, amongst other things, to the circumstances referred to in my reasons for judgment of 3 June 1996 concerning service of the Bankruptcy Notice, a realistic view must be taken of Mr Bond's wishes to provide a meaningful address concerning aspects of the administration of his bankrupt estate.

I think it likely that the net effect of the posting of documents to the three addresses referred to in Hawaii in the material and to the delivery of those documents on the Official Trustee means that Mr Bond will be aware of this application. 

It may be that from the affidavit of Mr Wilkins filed by leave this morning, the Official Trustee has a further address at which Mr Bond can be contacted.  Mr Simins, of the Official Trustee's office, indicated to the solicitor for the applicant this morning that there is an address in New Zealand at which Mr Bond might be contacted.  I would anticipate that the Official Trustee will deliver a copy of this order to Mr Bond at whatever address the Official Trustee has for him.  As to the question of whether leave should be granted, the substantive order sought by the application, it seems to me that this is a clear case. 

On 15 May 1996 prior to the presentation by Mr Bond of his debtor's petition, the Supreme Court ordered interlocutory judgment be entered against him for damages to be assessed and for costs.  The trial against the other respondents is to commence on 18 August 1997 and it is anticipated to last six weeks.

Pursuant to O 39 rr 52 and 53A of the Supreme Court Rules (Qld), where a plaintiff obtains interlocutory judgment against a defendant for damages to be assessed and other defendants are still defending the proceedings, the appropriate place to determine the assessment of damages is before the trial judge during the conduct of the trial.

In order to quantify the debt owed by Mr Bond to the present applicant and in respect of which debt the present applicant wishes to prove, the assessment should occur during the course of the trial which continues against the other defendants.  In the present case, considerations of convenience and efficiency overwhelmingly support the grant of leave.

I therefore make the following orders:

1. The sending on 24 July 1997 of the application filed on 22 July 1997 and the affidavits of Peter Bernard Hickey and Craig Anthony Wilkins, both filed on 22 July 1997 by air-mail to each of the following addresses:

(a)Mr Paul Levinson Bond, 4079 Blackpoint Road, Honolulu, HI 96816 USA;

(b)Mr Paul Levinson Bond, P O Box 570 Captain Cook, HI 96704 USA;

(c)Mr Paul Levinson Bond, care of Religion of Jesus Church, P O Box 828 Captain Cook, HI 96704 USA,

and the delivery of those affidavits herein referred to the Official Trustee on 31 July 1997 be sufficient service of this application and those affidavits;

1. Coomera Resort Pty Ltd have leave, pursuant to s 58(3)(b) of the Bankruptcy Act 1966 to proceed against Paul Levinson Bond with its claim for equitable compensation in the action commenced in the Supreme Court of Queensland by writ of summons number 1321 of 1994;

1. This order be served upon the Official Trustee;

1. Paul Levinson Bond have 28 days after such service upon the Official Trustee to apply to have this order set aside should he be so minded. 

The Court notes that it anticipates that the Official Trustee will forward a copy of this order to any known address of Mr Bond.

I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 8 August 1997

Counsel for the Applicant:           Mr R Chesterman QC

Solicitor for the Applicant:          Clayton Utz

No appearance for the Respondents.

Date of hearing:  8 August 1997