Frank Barbaro v Donna Maree Millington

FRANK BARBARO & ANOR v DONNA MAREE MILLINGTON & ORS
[2010] ACTSC 118 (1 OCTOBER 2010)

PRACTICE AND PROCEDURE – pleadings – statement of claim – application to strike out- claim for declaratory relief and damages for fraud – plaintiffs having previously obtained judgment against defendant for debt – subsequent bankruptcy of defendant – action bound to fail – summary judgment entered for defendant

Bankruptcy Act 1966 (Commonwealth)
Civil Law (Property) Act 2006 (ACT)

Power v Kenny [1977] WAR 87

No. SC 815 of 2009

Judge:            Master Harper
Supreme Court of the ACT

Date:              1 October 2010

IN THE SUPREME COURT OF THE       )
  )          No.  SC 815 of 2009
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:FRANK BARBARO

First plaintiff

JACQUELINE BARBARO

Second plaintiff

AND:DONNA MAREE MILLINGTON AND OTHERS

Defendants

ORDER

Judge:  Master Harper
Date:  1 October 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. The freezing orders made on 19 October 2009 be discharged.

1. The application be stood over for submissions as to further orders to be made and as to costs.

The application

1. The defendants make application for orders that the originating application and statement of claim be struck out, and that freezing orders which I made ex parte in October 2009 be discharged. 

The claim by the plaintiffs

1. The action by the plaintiffs was commenced by originating claim, with statement of claim attached, in September 2009.  The statement of claim runs to 24 pages and was settled by senior and junior counsel.  The nature of the claim is described in the originating application in the following terms:

Other claim for declarations, damages and other relief at general law and in equity and in accordance with section 239 of the Civil Law (Property) Act 2006 (ACT) in respect of dispossession of property with the intention and/or for the purpose of defeating, delaying, hindering and defrauding creditors; and also defeating, delaying and hindering the plaintiffs’ pursuit of the lawful processes of the courts and the due execution thereof; and for associated relief as set out in the associated statement of claim herewith.

1. The plaintiffs seek principally declaratory relief, and in the alternative an order for payment of $85,000.00, and an order for payment of damages “and/or equitable damages” to be assessed.

1. In summary, the claim by the plaintiffs against the first defendant is that they held a charge over her house at Spence pursuant to a deed, to secure a debt of $85,000.00.  They lodged a caveat to protect their interest.  They then commenced action in this court against the first defendant.  In April 2000 Miles CJ ordered that the Registrar-General not remove the caveat without the permission of the plaintiff.  In March 2004, after hearing the action, Connolly J discharged the interim order of Miles CJ and found in favour of the first defendant and against the plaintiffs.  On the first defendant’s application, the caveat was then removed.

1. In November 2005 the plaintiffs were granted an extension of time to appeal against the judgment and orders of Connolly J.…