Donnelly v Scott

[2001] FCA 782

FEDERAL COURT OF AUSTRALIA

Donnelly v John Joseph Scott and Another [2001] FCA 782

BANKRUPTCY - summons for examination under section 81 of Bankruptcy Act 1966 (Cth) – motion for adjournment of summons pending process in Supreme Court of New South Wales for taking of accounts – where no allegation of abuse of process or improper use of summons – whether more just and equitable to defer examination or not in circumstances – motion dismissed.

Bankruptcy Act 1966 (Cth)

Karounis v Official Trustee (1988) 19 FCR 330 applied

Hong Kong Bank of Australia v Murphy (1992) 28 NSWLR 512 referred to

Bell Group (in liquidation) v Westpac Banking Corporation [1998] FCA 849 referred to

Sargent v ASL Developments (1974) 131 CLR 634 referred to

MAXWELL DONNELLY v JOHN JOSEPH SCOTT AND ANOTHER

N7208 of 2001

JUDGE:             ALLSOP J

DATE:               18 JUNE 2001

PLACE:             SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7208 of 2001

BETWEEN:

MAXWELL DONNELLY
APPLICANT

AND:

JOHN JOSEPH SCOTT
FIRST RESPONDENT

JOHN JOSEPH SLATTERY
SECOND RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

18 JUNE 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The notice of motion dated 14 May 2001 filed by John Joseph Scott and John Joseph Slattery be dismissed.

2.Mr Scott and Mr Slattery pay the costs of Mr Donnelly of the notice of motion.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7208 of 2001

BETWEEN:

MAXWELL DONNELLY
APPLICANT

AND:

JOHN JOSEPH SCOTT
FIRST RESPONDENT

JOHN JOSEPH SLATTERY
SECOND RESPONDENT

JUDGE:	ALLSOP J
DATE:	18 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT (delivered orally and revised)

1. This is a notice of motion brought by Messrs Scott and Slattery to adjourn generally the summons served on each of them to attend and be examined under s 81 of the Bankruptcy Act 1966 (Cth). The notice of motion also seeks orders that each summons not be restored until after the completion of the taking of accounts by the Supreme Court of New South Wales Equity Division in proceedings 2000 of 1998. Mr Donnelly, who obtained the orders for examination under s 81, is the trustee of one Kenneth Livingstone.

2. The background of this matter is best understood by an appreciation of the proceedings in the Equity Division, 2000 of 1998.  These are proceedings which were commenced in 1998 by a Dr McMahon against Mr Livingstone as the first defendant, Mr Scott as the second defendant and a company called Ophix Finance Corporation Pty Limited (Ophix) as the third defendant.  Mr Slattery is not a party to the proceedings.  He apparently did not give evidence in those proceedings.  Mr Donnelly is the trustee in bankruptcy of Mr Livingstone.

3. On 16 February 2001 Windeyer J delivered judgment in those proceedings.  These reasons should be read together with his Honour's reasons for judgment which were exhibited in the material before me on the motion.  I…