Ferris v Schafferius

[2008] FCA 116

FEDERAL COURT OF AUSTRALIA

Ferris v Schafferius [2008] FCA 116

BANKRUPTCY – application for leave pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to commence proceedings

Bankruptcy Act 1966 (Cth), s 58(3)(b)

SHARYN FAYE FERRIS v KEITH DOUGLAS SCHAFFERIUS AND JOHN GERVASE SHANAHAN AS TRUSTEE IN BANKRUPTCY FOR KEITH DOUGLAS SCHAFFERIUS
QUD08 OF 2008

GREENWOOD J
19 FEBRUARY 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD08 OF 2008

BETWEEN:

SHARYN FAYE FERRIS
Applicant

AND:

KEITH DOUGLAS SCHAFFERIUS
First Respondent

JOHN GERVASE SHANAHAN AS TRUSTEE IN BANKRUPTCY FOR KEITH DOUGLAS SCHAFFERIUS
Second Respondents

JUDGE:	GREENWOOD J
DATE OF ORDER:	19 FEBRUARY 2008
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The applicant is given leave pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to commence proceedings against the first respondent, Keith Douglas Schafferius, in terms of Exhibit ‘MLM-01’ to the affidavit of Margaret Laurelle McNamara filed 10 January 2008.

2.There shall be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD08 OF 2008

BETWEEN:

SHARYN FAYE FERRIS
Applicant

AND:

KEITH DOUGLAS SCHAFFERIUS
First Respondent

JOHN GERVASE SHANAHAN AS TRUSTEE IN BANKRUPTCY FOR KEITH DOUGLAS SCHAFFERIUS
Second Respondents

JUDGE:	GREENWOOD J
DATE:	19 FEBRUARY 2008
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant, Sharyn Faye Ferris, seeks leave pursuant to s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to commence proceedings for the recovery of loan moneys, together with interest advanced by the applicant to her two brothers, Bevan Robert Schafferius and the bankrupt, Keith Douglas Schafferius.  The bankrupt presented a debtors petition on 16 October 2006.  The moneys are said to have been lent to the proposed defendants upon terms that the loans would be repaid by them upon the sale of an asset, a motel, by a company in which the borrowers had an interest.  The asset has been sold.  Some interest has been repaid by the borrowers but the principal and other interest moneys remain outstanding.

2. Leave is sought in terms of Annexure ‘MLM-01’ of the affidavit of Margaret Laurelle McNamara, and that exhibit attaches an application and statement of claim.  By para 9 of the affidavit, the deponent identifies that there are questions of fact which are inseparable from the claim to be made against the first respondent.  Submissions have been made this morning that there is a common substratum of fact and there are questions of fact and law which are heavily interrelated.  The application for leave is not opposed by the trustee of the estate of the bankrupt.  The trustee has confirmed by letter to the solicitors for the applicant that no objection is taken to the grant of leave. 

3. Accordingly, I propose to give leave in terms of the application, that is, leave pursuant s 58(3)(b) of the BankruptcyAct 1966 (Cth) to commence proceedings against the respondent in terms of Exhibit ‘MLM-01’ to the affidavit of Margaret Laurelle McNamara filed with the application. No orders as to costs are sought.

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

Associate:

Dated:        19 February 2008

Counsel for the Applicant:	Mr P A Looney
Solicitor for the Applicant:	Biggs & Biggs
Counsel for the Respondents:	Unrepresented
Solicitor for the Respondents:	Unrepresented
Date of Hearing:	19 February 2008
Date of Judgment:	19 February 2008