Garrett v Duncan

[2014] FCA 1260

FEDERAL COURT OF AUSTRALIA

Garrett v Duncan [2014] FCA 1260

Citation:	Garrett v Duncan [2014] FCA 1260
Parties:	ANDREW MORTON GARRETT v STEPHEN JAMES DUNCAN
File number:	VID 425 of 2014
Judge:	TRACEY J
Date of judgment:	21 November 2014
Catchwords:	BANKRUPTCY – application for summary judgment without oral hearing – where existing settlement agreement contained release clause which unconditionally released both parties from further litigation in relation to the administration of the estate – whether reasonable prospects of successfully prosecuting proceeding – whether proceeding is frivolous, vexatious or an abuse of process
Legislation:	Federal Court of Australia Act 1976 (Cth) – ss 20A, 37M, 37N Federal Court Rules 2011 – r 26.01
Cases cited:	Garrett v Macks [2014] FCA 1259 – cited
Date of hearing:	21 November 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	14
Counsel for the Applicant:	The applicant appeared in person

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 425 of 2014

BETWEEN:	ANDREW MORTON GARRETT Applicant
AND:	STEPHEN JAMES DUNCAN Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	21 NOVEMBER 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The proceeding be dealt with without an oral hearing.

2.The application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 425 of 2014

BETWEEN:	ANDREW MORTON GARRETT Applicant
AND:	STEPHEN JAMES DUNCAN Respondent

JUDGE:	TRACEY J
DATE:	21 NOVEMBER 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant, Mr Andrew Garrett, commenced this proceeding by originating application dated 25 July 2014.  He sought an order that the surplus of the bankrupt estate of his former wife be paid to him in his capacity as joint trustee of a family trust.  Various forms of interlocutory relief were also sought.  Mr Garrett filed a statement of claim on the same day in which he made various allegations relating to the conduct of the respondent, Mr Stephen Duncan, who was the trustee of Mr Garrett’s former wife’s bankrupt estate.  A further interlocutory application was filed on 12 August 2014.

2. On 2 September 2014 Mr Duncan filed an affidavit in support of applications that the Court should make orders under s 20A of the Federal Court of Australia Act 1976 (Cth) (“the Act”) and Rule 26.01 of the Federal Court Rules 2011 (“the Rules”) terminating the proceeding without an oral hearing.

3. In his affidavit Mr Duncan confirmed that he had acted as the trustee of Mrs Garrett’s bankrupt estate since late 2004.  He outlined extensive litigation that ensued in this Court and the South Australian Supreme Court relating to Mr Garrett’s affairs and those of his wife.  It is not necessary for present purposes to outline this litigation in great detail.  It is sufficient to record that the litigation related, in part, to the bankrupt estates of both Mr Garrett and his former wife.

4. The litigation was brought to an end…