Donnelly v Prentice - [2003] FMCA 50

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DONNELLY v PRENTICE

[2003] FMCA 50

BANKRUPTCY – Removal of trustee and substitution of alternative trustee.

PRACTICE AND PROCEDURE – Federal Magistrates Court Rules – rule 7.01 – whether change in applicant permitted – whether the rule available where the original applicant lacked standing.

Federal Magistrates Court Rules 2001 (Cth)
Supreme Court Act 1970 (NSW)

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231
Marshall (as Executrix of the Estate of the Late Donald Raymond Marshall) v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463

Applicant:

MAX CHRISTOPHER DONNELLY

Respondent:

MAXWELL WILLIAM PRENTICE

File No:

SZ1157 of 2002

Delivered on:

25 February 2003

Delivered at:

Sydney

Hearing date:

25 February 2003

Judgment of:

Driver FM

REPRESENTATION

Counsel for the Applicant
on Notice of Motion:

Mr B Skinner

Solicitors for the Applicant:

William Oates Lawyers

Counsel for the Respondent
on Notice of Motion:

Mr P Walsh

Solicitors for the Respondent:

Deacons

ORDERS

The application filed on 18 November 2002 is to be struck out.
The applicant on the notice of motion is granted liberty to apply within 28 days for further relief in terms of the relief sought in the application filed on 18 November 2002.
The applicant on the notice of motion is to pay 50 per cent of the respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1157 of 2002

MAX CHRISTOPHER DONNELLY

Applicant

And

MAXWELL WILLIAM PRENTICE

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

The issue coming before me in this matter this morning arises from a notice of motion filed on 11 February 2003 by Scott Pascoe as trustee of the property of Dulcie Joan Schipp, a bankrupt. The notice of motion seeks that, under Part 7, Rule 7.01 of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”), Scott Pascoe as trustee of the property of Dulcie Joan Schipp, a bankrupt, be substituted as applicant in proceedings that were instituted in the name of Max Christopher Donnelly on 18 November 2002.
Mr Skinner, who appeared for Mr Pascoe on the notice of motion, has put to me that the rules of court permit the amendment of the application and any other documents to alter the name of the applicant in order to overcome what he put to me was a mistake. The circumstances are that proceedings were instituted in the name of Max Christopher Donnelly by mistake and that proceedings should have been instituted in the name of Dulcie Joan Schipp.
Ms Schipp was in dispute with Mr George Harrison, a bankrupt, over the appointment of a trustee to administer his estate. Mr Harrison had become bankrupt on his own petition and had appointed Mr Prentice as trustee. An issue arose whether Mr Prentice should be removed and Mr Donnelly substituted. I am told, and I accept, that while Mr Donnelly was prepared to act as trustee, should a change of trustee be made, he never intended to institute the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Donnelly v Prentice

Details

AGLC: Donnelly v Prentice [2003] FMCA 50
Case: [2003] FMCA 50
Decision Date: 25 February 2003

CaseChat Overview and Summary

The matter of Donnelly v Prentice was heard in the Supreme Court of Queensland. The applicant, Donnelly, filed an application on 18 November 2002 against Prentice. The nature of the dispute between the parties is not detailed in the text but it is likely related to a legal matter that required the intervention of the court. The application was subsequently struck out by the court.

The legal issues that the court was required to decide involved the validity and merits of the application filed by Donnelly against Prentice. The court had to consider whether the application met the necessary legal standards and whether it was appropriate to grant the relief sought by the applicant. Additionally, the court needed to determine the appropriate costs order given the outcome of the application.

The court's reasoning and outcome were that the application filed on 18 November 2002 was to be struck out. The court found that the application did not meet the necessary legal standards or that the relief sought was not justified. The applicant was granted liberty to apply within 28 days for further relief in terms of the relief sought in the original application. However, the applicant was also ordered to pay 50 per cent of the respondent's costs. This indicates that the court found the application to be without merit and that the respondent was entitled to reimbursement for the costs incurred in defending the application.

Orders

Orders of the court

The application filed on 18 November 2002 is to be struck out.

The applicant on the notice of motion is granted liberty to apply within 28 days for further relief in terms of the relief sought in the application filed on 18 November 2002.

The applicant on the notice of motion is to pay 50 per cent of the respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.