Eurostar Pty Ltd v Donnelly (Trustee), in the matter of King (Bankrupt)

[2005] FCA 698

FEDERAL COURT OF AUSTRALIA

Eurostar Pty Ltd v Donnelly (Trustee), in the matter of King (Bankrupt)
[2005] FCA 698

EUROSTAR PTY LTD (ACN 076 688 143) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION), AP & PJ KING PTY LTD (ACN 084 502 376) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION), MB SALES AUSTRALIA PTY LTD (ACN 083 271 587) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) v MAX DONNELLY (AS TRUSTEE OF THE ESTATE OF ANTHONY PATRICK KING)

NSD515 OF 2005

EUROSTAR PTY LTD (ACN 076 688 143) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION), AP & PJ KING PTY LTD (ACN 084 502 376) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION), MB SALES AUSTRALIA PTY LTD (ACN 083 271 587) (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) v MAX DONNELLY (AS TRUSTEE OF THE ESTATE OF PETER JAMES KING)

NSD517 OF 2005

BENNETT J
10 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD515 OF 2005 NSD517 OF 2005

BETWEEN:

EUROSTAR PTY LTD (ACN 076 688 143)
(RECEIVERS AND MANAGERS APPOINTED)
(IN LIQUIDATION)
FIRST APPLICANT

AP & PJ KING PTY LTD (ACN 084 502 376)
(RECEIVERS AND MANAGERS APPOINTED)
(IN LIQUIDATION)
SECOND APPLICANT

MB SALES AUSTRALIA PTY LTD (ACN 083 271 587) (RECEIVERS AND MANAGERS APPOINTED)
(IN LIQUIDATION)
THIRD APPLICANT

AND:

NSD515 OF 2005
MAX DONNELLY
(IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF ANTHONY PATRICK KING)
RESPONDENT

NSD517 OF 2005
MAX DONNELLY
(IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF PETER JAMES KING)
RESPONDENT

JUDGE:	BENNETT J
DATE:	10 MAY 2005
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to section 58(3)(b) of the Bankruptcy Act, that leave be granted to the Applicants to take fresh steps in, and to continue with, Supreme Court of New South Wales Proceedings File No 50173 of 2004 against the Respondent in his capacity of the bankrupt estates of Anthony Patrick King and Peter James King.
2. Each party pay its or his own 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	NSD515 OF 2005 NSD517 OF 2005

BETWEEN:

EUROSTAR PTY LTD (ACN 076 688 143)
(RECEIVERS AND MANAGERS APPOINTED)
(IN LIQUIDATION)
FIRST APPLICANT

AP & PJ KING PTY LTD (ACN 084 502 376)
(RECEIVERS AND MANAGERS APPOINTED)
(IN LIQUIDATION)
SECOND APPLICANT

MB SALES AUSTRALIA PTY LTD (ACN 083 271 587) (RECEIVERS AND MANAGERS APPOINTED)
(IN LIQUIDATION)
THIRD APPLICANT

AND:

NSD515 OF 2005
MAX DONNELLY
(IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF ANTHONY PATRICK KING)
RESPONDENT

NSD517 OF 2005
MAX DONNELLY
(IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF PETER JAMES KING)
RESPONDENT

JUDGE:	BENNETT J
DATE:	10 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In these matters the applicants seek leave to proceed against the respondent in his capacity as trustee of the bankrupt estates of Peter James King and Anthony Patrick King in the Supreme Court of New South Wales.  There is no dispute or no doubt from the facts before me that circumstances have arisen whereby the proceedings in the Supreme Court were commenced after Mr PJ King and Mr AP King were made bankrupt.

2. The applicants seek an order for leave under s 58(3)(b) of the Bankruptcy Act 1966 (Cth)(‘the Act’) to continue with proceedings that have been commenced in the Supreme Court. It is apparent from the evidence that the matter in the Supreme Court involves complex questions of fact and law. I note that the trustee in this case does not consent to or oppose leave being granted.

3. In Allanson v Midland Credit Ltd (1977) 16 ALR 43, the Full Court at 49 specifically noted that cases where complex questions arise may be appropriately dealt with by leave being granted, so that they can be properly determined in a court, thereby likely resulting in less costs and complexity in the future conduct of the case.

4. While I am mindful of the overall considerations when taking into account the application under s 58(3) of the Act, I note that the proceedings in the Supreme Court involve questions with respect to specific properties in which the applicants claim an equitable interest and that a solicitor of the Court has certified that she believes that there are reasonable grounds for believing that the plaintiffs have reasonable prospects of success in these proceedings.

5. Accordingly, I propose to grant leave and I make orders in both these proceedings in accordance with the short minutes of order.  I note that, by consent, each party is to pay its or his own costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:             2 June 2005

Solicitor for the Applicants:	Mallesons Stephen Jaques
Solicitor for the Respondent:	Mr P Soliman
Date of Hearing:	10 May 2005
Date of Judgment:	10 May 2005