Dunn, in the matter of Dunn v Vangsnes

[2000] FCA 1209

FEDERAL COURT OF AUSTRALIA

Dunn, in the matter of Dunn v Vangsnes [2000] FCA 1209

IN THE MATTER OF TRYGVE VANGSNES

ROBERT DUNN v TRYGVE VANGSNES
N 8053 OF 1999

HELY J
22 AUGUST 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8053 OF 1999

BETWEEN:	ROBERT DUNN APPLICANT
AND:	TRYGVE VANGSNES RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	22 AUGUST 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The petition be dismissed.

2.The respondent pay the applicant's costs of, and incidental to, the petition including any reserved costs.

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	N 8053 OF 1999

BETWEEN:	ROBERT DUNN APPLICANT
AND:	TRYGVE VANGSNES RESPONDENT

JUDGE:	HELY J
DATE:	22 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. When this matter came on for hearing on 27 July 2000 I indicated that in my discretion I proposed to make a sequestration order, but would stand the proceedings over until 8 August 2000 in order to give Mr Vangsnes an opportunity of making some arrangements with the applicant. On 8 August Mr Vangsnes, filed evidence to the effect that he had cashed a cheque drawn by the AMP which represented the proceeds of his superannuation policy. In the light of that fact, Mr Kerr, counsel for the applicant, now indicates that the applicant does not propose to proceed with the application and it seeks an order that the petition be dismissed under s 52(2) of the Bankruptcy Act 1966 (Cth).

2. In the circumstances, Mr Kerr submits that the respondent should be ordered to pay the applicant's costs.  I agree with that submission.  Until Mr Vangsnes took the step of cashing the cheque from the AMP, although the evidence established solvency, I would have exercised my discretion in favour of making a sequestration order.  The dismissal of the petition results from circumstances which have only just arisen.  The presentation and prosecution of the petition were entirely appropriate, and the petition was dismissed only because of a last minute change in the accessibility of the only asset of Mr Vangsnes.

3. I therefore order that the petition be dismissed.  I order the respondent to pay the applicant's costs of and incidental to the petition including any reserved costs.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             29 August 2000

Counsel for the Applicant:	Mr V Kerr
Solicitor for the Applicant:	Blake Dawson Waldron
The respondent appeared in person
Date of Hearing:	22 August 2000
Date of Judgment:	22 August 2000