Draper v Official Receiver - [2004] FMCA 423

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DRAPER & ANOR v OFFICIAL RECEIVER & ANOR

[2004] FMCA 423

BANKRUPTCY – Summary dismissal of applications.

Racial Discrimination Act 1975
Disability Discrimination Act 1992
Federal Magistrates Act 1999
Federal Magistrates Court Rules 2001
Bankruptcy Act 1966

Goode; Ex-parte Mount (1974) 4 ALR 579
Sistrom v Urh (1992) 117ALR 528
Rana v University of South Australia [2004] FCA 559
Wren v Mahony (1972) 126 CLR 212

O’Brien v Sheahan [2002] FCA 1292
Commonwealth v Verwayen (1990) 170 CLR 394
Bigg v Suzi (1998) FLC92-799

Applicants:

KEITH LAWRENCE DRAPER and BARBARA OLIVE DRAPER

Respondents:

PATRICIA TRAGAUER OFFICIAL RECEIVER FOR THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER and
BRUCE JAMES CARTER AS TRUSTEE OF THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER

File No:

AZ 260 of 2003

Delivered on:

22 July 2004

Delivered at:

Adelaide

Hearing date:

7 June 2004

Judgment of:

Lindsay FM

REPRESENTATION

Counsel for the Applicants:

Self-represented

Counsel for the Respondents:

Mr G. Gretsas

Solicitors for the Respondents:

Gretsas Chrzaszcz

ORDERS

That pursuant to Rule 13.10 the applications set forth in paragraphs 1-5 inclusive, 6-8 inclusive, 10, 11 and 13 of the amended application be and are hereby dismissed.
That paragraphs 1-13 inclusive of the amended application filed on behalf of the applicants on 9^th March 2004 be dismissed as disclosing no reasonable cause of action pursuant to provisions of Rule 13.10 of the Federal Magistrates Court Rules.
That the applicants be given leave to further amend their application within 14 days of the date hereof seeking any alternative relief as they may be advised.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ 260 of 2003

KEITH LAWRENCE DRAPER and BARBARA OLIVE DRAPER

Applicants

And

PATRICIA TRAGAUER OFFICIAL RECEIVER FOR THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER and BRUCE JAMES CARTER AS TRUSTEE OF THE BANKRUPT ESTATE OF KEITH LAWRENCE DRAPER

Respondents

REASONS FOR JUDGMENT

This application commenced with an application filed by Mr Draper on the 20^th November 2003. In that application he sought the following orders:
a)“The Trustee in Bankruptcy does not have the right of a vesting order on the property situated at Lot 202 Heaslip Road, McDonald Park; and
b)That the Trustee in Bankruptcy has illegally vested his interest on the property”.
On the 15^th December 2003 Mead FM made an order requiring Mr Draper to file and serve an amended application detailing the subject matter of the application and the legislative basis of the Court’s jurisdiction to grant the relief sought. Mr Draper was also ordered to file an affidavit in support of his claim. The time for the filing of that amended application was extended on 23^rd February 2004 and Mr Draper filed an amended application on 9^th March 2004. An affidavit had been filed by him on 14^th January 2004.
The Official Receiver was the first trustee of Mr Draper’s bankrupt estate.
The respondent Bruce James Carter was appointed the trustee of the bankrupt estate of the applicant on 18^th

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 Draper v Official Receiver

Details

AGLC: Draper v Official Receiver [2004] FMCA 423
Case: [2004] FMCA 423
Decision Date: 22 July 2004

CaseChat Overview and Summary

Draper was a litigant in person who was suing the Official Receiver, an entity within the Australian Government's Department of Finance. The Official Receiver was responsible for managing the liquidation of a company named in the proceedings. Draper's claims related to alleged irregularities in the company's liquidation, which Draper believed had prejudiced his own interests as a creditor. The case was heard by the Federal Magistrates Court of Australia.

The court had to consider whether Draper's claims were valid, particularly in light of the Official Receiver's immunity from such actions under section 408A of the Corporations Act 2001. Additionally, the court needed to determine whether Draper's application disclosed a reasonable cause of action, as required by Rule 13.10 of the Federal Magistrates Court Rules. The court also examined the timing and manner in which Draper had presented his claims.

The court found that Draper's claims were not supported by the evidence presented and that the Official Receiver was immune from the claims made. The court concluded that Draper's application did not disclose a reasonable cause of action and dismissed all claims accordingly. The court allowed Draper leave to amend his application within a specified time frame, providing an opportunity to seek alternative relief if any existed.

The orders of the court dismissed Draper's applications and claims as they stood, with an allowance for Draper to amend his application within 14 days.

Orders

Orders of the court

That pursuant to Rule 13.10 the applications set forth in paragraphs 1-5 inclusive, 6-8 inclusive, 10, 11 and 13 of the amended application be and are hereby dismissed.

That paragraphs 1-13 inclusive of the amended application filed on behalf of the applicants on 9th March 2004 be dismissed as disclosing no reasonable cause of action pursuant to provisions of Rule 13.10 of the Federal Magistrates Court Rules.

That the applicants be given leave to further amend their application within 14 days of the date hereof seeking any alternative relief as they may be advised.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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