Garrett v Macks

[2014] FCA 1259

FEDERAL COURT OF AUSTRALIA

Garrett v Macks [2014] FCA 1259

Citation:	Garrett v Macks [2014] FCA 1259
Parties:	ANDREW MORTON GARRETT v PETER IVAN MACKS
File number:	VID 304 of 2014
Judge:	TRACEY J
Date of judgment:	21 November 2014
Catchwords:	BANKRUPTCY – application for summary judgment – 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) – s 31A Federal Court Rules 2011 – r 26.01
Cases cited:	Cirillo v Citicorp [2001] SASC 349 – cited McDermott v Black (1940) 63 CLR 161 – considered Rucinski v Monash University [2012] FCA 362 – cited Spencer v The Commonwealth (2010) 241 CLR 118 – considered State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 – cited
Date of hearing:	21 November 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	27
Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr P Zappia
Solicitor for the Respondent:	DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 304 of 2014

BETWEEN:	ANDREW MORTON GARRETT Applicant
AND:	PETER IVAN MACKS Respondent

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

THE COURT ORDERS THAT:

1.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 304 of 2014

BETWEEN:	ANDREW MORTON GARRETT Applicant
AND:	PETER IVAN MACKS Respondent

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

REASONS FOR JUDGMENT

1. The applicant, Mr Andrew Garrett, commenced this proceeding by a fast track application filed on 5 June 2014.  He sought orders that the surplus of his bankrupt estate be paid to him by the respondent who was his trustee in bankruptcy.  Mr Garrett also sought orders that Mr Macks provide him with documents relating to the estate including legal advice and a series of interlocutory orders relating to his estate.  A further interlocutory application was filed on 12 August 2014.  It sought discovery orders and an order that evidence “adduced” in two other proceedings (VID 425 of 2014 and VID 248 of 2014) be “adduced” as evidence in the present proceeding.

2. By interlocutory application filed on 19 September 2014 Mr Macks sought orders for summary judgment pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (“the Act”) and Rule 26.01 of the Federal Court Rules 2011 (“the Rules”).

3. The various interlocutory applications were listed for hearing on 3 October 2014.  On 1 October 2014 Mr Garrett filed another interlocutory application in which he sought an adjournment of the hearing “to enable Commercial and General Law to file a Notice of Acting and properly brief…