Duarte v Waverley Council

[2022] NSWLEC 12

Land and Environment Court

New South Wales

Medium Neutral Citation:

Duarte v Waverley Council [2022] NSWLEC 12

Hearing dates:

18 February 2022

Date of orders:

18 February 2022

Decision date:

18 February 2022

Jurisdiction:

Class 4

Before:

Pain J

Decision:

The Court orders:

(1) The matter is allocated for one day of hearing on 13 April 2022.

(2) The Second and Third Respondents are to file evidence in reply on or by 18 March 2022.

(3) The Applicant is to file and serve written submissions on or by 6 April 2022.

(4) Parties should advise on witnesses for cross-examination on or by 6 April 2022.

(5) The Second and Third Respondents are to file and serve written submissions by 11 April 2022.

(6) Liberty to apply on 48 hours’ notice.

Catchwords:

PROCEDURE – adjournment to enable consideration of action under Bankruptcy Act 1966 (Cth) refused

Legislation Cited:

Bankruptcy Act 1966 (Cth), s 60(2), 60(4)

Category:

Procedural rulings

Parties:

Rodney Duarte (Applicant)
Waverley Council (First Respondent)
Murray Ross (Second Respondent)
Jacqueline Ross (Third Respondent)

Representation:

Counsel:
R Duarte, in person (Applicant)
L Brain, solicitor (Second and Third Respondents)

Solicitors:
Cockburn & Co Lawyers (Second and Third Respondents)

File Number(s):

2021/181825, 2021/181839

Publication restriction:

No

EX TEMPORE Judgment

1. I am dealing with this matter as List Judge. Mr Rodney Duarte the Applicant is seeking relief in two sets of Class 4 proceedings in relation to the operation of an air conditioning unit on his neighbours’, the Second and Third Respondents, land. The Second and Third Respondents have made an application for adjournment of these proceedings to enable consideration of a challenge in the Federal Circuit Court of Australia of the decision of Mr Duarte’s trustee in bankruptcy, advised in a letter dated 27 January 2022, that the Class 4 proceedings may proceed to the extent that they rely on personal injury or wrong done on the bankrupt (as opposed to property damage and compensation, which proceedings have been discontinued by the trustee) under s 60(4) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) . It appears that Mr Duarte is therefore able to proceed with at least part of his Class 4 proceedings at present. Aspects of Mr Duarte’s claims remain unclear given the drafting of his court documents. Mr Duarte is not legally represented. I note that Mr Duarte filed a notice of discontinuance against Waverley Council the First Respondent on 9 December 2021 in both Class 4 proceedings.

2. The Second and Third Respondents are considering challenging the finding of the trustee in the letter dated 27 January 2022 in the Federal Circuit Court. There is no applicable stay provision such as s 60(2) of the Bankruptcy Act, which applied to earlier stay these Class 4 proceedings pending the decision of Mr Duarte’s trustee in bankruptcy about this litigation.

3. Mr Duarte is also seeking to set aside his sequestration order and that is to be heard on 14 March 2022 in the Federal Circuit Court. The Second and Third Respondents seek to adjourn these Class 4 proceedings until after the conclusion of the hearing on 14 March 2022 in the Federal Circuit Court at which point they will consider applying for a review of the trustee’s decision if that avenue is then necessary.

4. There is no statutory basis under the Bankruptcy Act, a Commonwealth act, for adjourning the Class 4 proceedings in these circumstances. The adjournment application is effectively a stay of the Class 4 proceedings pending action in the Federal Circuit Court which may or may not happen. While it is an understandable preference of the Second and Third Respondents that Mr Duarte’s position in relation to his bankruptcy is known that is not a prerequisite to the Class 4 proceedings continuing in the present circumstances.

5. Mr Duarte can presently proceed with his applications in this Court and that is an important consideration in my view.

6. Attempting to balance the interests of fairness I will make a longer timetable in the Class 4 proceedings to enable the Second and Third Respondents to consider their position in relation to taking Federal Circuit Court proceedings but will not adjourn the Class 4 proceedings in the manner sought by the Second and Third Respondents.

Orders

In proceedings 2021/181825 and 2021/181839

7. The Court orders:

1. The matter is allocated for one day of hearing on 13 April 2022.

2. The Second and Third Respondents are to file evidence in reply on or by 18 March 2022.

3. The Applicant is to file and serve written submissions on or by 6 April 2022.

4. Parties should advise on witnesses for cross-examination on or by 6 April 2022.

5. The Second and Third Respondents are to file and serve written submissions by 11 April 2022.

6. Liberty to apply on 48 hours’ notice.

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Decision last updated: 25 February 2022