Dixon v Maguire
[1999] FCA 571
•3 MAY 1999
FEDERAL COURT OF AUSTRALIA
Dixon v Maguire [1999] FCA 571
BANKRUPTCY – Bankruptcy Act 1966 – Application under s 175(4) – want of jurisdiction.
Bankruptcy Act 1966, s 175
KEVIN GRAHAM DIXON v JOHN MAGUIRE
V 7072 of 1999KENNY J
MELBOURNE
5 MAY 1999
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 7072 OF 1999
BETWEEN:
KEVIN GRAHAM DIXON
ApplicantAND:
JOHN MAGUIRE
RespondentJUDGE:
KENNY J
DATE OF ORDER:
3 MAY 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. The amended application be dismissed for want of jurisdiction.
2. The applicant pay the respondent’s costs of the amended application.
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
V 7072 OF 1999
BETWEEN:
KEVIN GRAHAM DIXON
ApplicantAND:
JOHN MAGUIRE
Respondent
JUDGE:
KENNY J
DATE:
5 MAY 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
By an amended application originally filed on 16 March 1999 and filed again in Court on 29 March 1999, the applicant, Kevin Graham Dixon, claimed
1.An audit pursuant to s 175(4) of the Bankruptcy Act 1966 from John Maguire of Birch Ross and Barlow Solicitors, being secured creditors of the properties as follows: …
The amount of money claimed owing as of 29 March 1999 to be issued to myself, Kevin Graham Dixon, and this court pursuant to S 175(4) of the Act.
The amended application was supported by Mr Dixon’s affidavit of 16 March 1999 in which he deposed, amongst other things, that he became bankrupt on 18 November 1997. The trustee of his estate is the Official Trustee in Bankruptcy.
It appears that the respondent, John Maguire, and his partner, John Barlow, both solicitors of the firm Birch Ross and Barlow at Korumburra, provided Mr Dixon with a mortgage loan in the sum of $180,000 over land at Shellcotts Road Korumburra in May 1993. It also appears that at a subsequent date they provided a second mortgage. Mr Dixon apparently fell into arrears and Messrs Maguire and Barlow subsequently entered into possession of the land at Shellcotts Road. Mr Dixon’s affidavit of 16 March 1999 evidences dissatisfaction with the accounts given by Messrs Maguire and Barlow as to the amounts outstanding under the first mortgage or first and second mortgages from time to time.
This was the hearing of an application which had been adjourned on 9 March 1999 to 29 March 1999 and then on 29 March 1999 until 3 May 1999. The application underwent significant amendment between 9 March and 3 May 1999. I made orders in the matter on 3 May 1999. My reasons for doing so on that day are set out below.
Mr Dixon purportedly made his amended application under s 175(4) of the Bankruptcy Act 1966. Section 175 presently provides:
(1)The Inspector-General may, on his or her own initiative or at the request of a creditor or the bankrupt, audit an account referred to in section 173 or cause it to be audited by an appropriate person.
(2)…
(3)…
(4)…
(5)For the purposes of an audit under this section, the trustee shall produce to the person carrying out the audit as and when required such books and information as that person requires. Penalty: 5 penalty units.
(6)The cost of an audit under this section shall be borne by the estate.
(7)…
Subsections 3 and 4 of s 175 were omitted by Act No 115 of 1990: see s 28(a). Subsection 2 of s 175 was repealed by Act No 11 of 1997: see s 3 and Schedule 1(17). Subsection 7 of s 175 was also repealed by Act No 11 of 1997: see s 3 and Schedule 1(19).
There is now no s 175(4) in the Bankruptcy Act. In any event, it will be seen that s 175 only confers powers on the Inspector-General to audit or cause an audit to be made of an account referred to in s 173. The accounts referred to in s 173 are the accounts kept by the trustee of the bankrupt’s estate: see s 173.
If Mr Dixon desires an audit of the accounts kept by the trustee of his bankrupt estate, then that task may be undertaken by, or at the direction of, the Inspector-General: see subs 175(1). The power to make such an audit or to cause such an audit to be made is, however, conferred upon the Inspector-General and not upon the Federal Court. There was nothing in the evidence before me to indicate that Mr Dixon has ever brought the matter to the attention of the Inspector-General.
If, as the terms of Mr Dixon’s amended application indicate, Mr Dixon wishes to obtain a verified account of the moneys claimed by his mortgagees as owing by him to them, then s 175 does not confer jurisdiction on this Court to order such an account to be given.
For these reasons, I dismissed Mr Dixon’s amended application for want of jurisdiction.
This being the third occasion upon which Mr Dixon has unsuccessfully sought to formulate his application against Mr Maguire in this Court, Mr Maguire was entitled to an order for costs in his favour.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate:
Dated: 5 May 1999
Counsel for the Applicant: Self-Represented Solicitor for the Applicant: Self-Represented Counsel for the Respondent: Mr D Lennon Solicitor for the Respondent: Lynch & MacDonald Date of Hearing: 3 May 1999 Date of Judgment: 5 May 1999
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