Garrett v Macks

[2006] FCA 601

FEDERAL COURT OF AUSTRALIA

Garrett v Macks [2006] FCA 601

PRACTICE AND PROCEDURE – application for summary dismissal of proceedings – whether reasonable prospect of prosecuting matter – no reasonable prospect – proceeding summarily dismissed.

Bankruptcy Act 1966 (Cth), s 58, s 153A, s 153B
Federal Court Act 1976 (Cth), s 31A
Federal Magistrates Act 1999, (Cth), s 103, s 104

Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 cited
Re Coyle and Another (1993) 120 ALR 527 cited
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 referred to

ANDREW MORTON GARRETT v PETER IVAN MACKS & ORS

SAD 61 of 2006

LANDER J
10 MAY 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 61 OF 2006

BETWEEN:

ANDREW MORTON GARRETT
APPLICANT

AND:

PETER IVAN MACKS
FIRST RESPONDENT

STEPHEN JAMES DUNCAN
SECOND RESPONDENT

INTERNATIONAL VINTNERS AUSTRALIA PTY LTD
THIRD RESPONDENT

RICHARD JOHN OLIVER
FOURTH RESPONDENT

ADRIAN TISATO
FIFTH RESPONDENT

DEPUTY COMMISSIONER OF TAXATION
SIXTH RESPONDENT

NATIONAL AUSTRALIA BANK
SEVENTH RESPONDENT

DAVID PROUDMAN
EIGHTH RESPONDENT

SCOTT ALEXANDER EVANS
NINTH RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

10 MAY 2006

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The proceeding be struck out.

2.        The applicant pay the respondents’ costs on an indemnity basis.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 61 OF 2006

BETWEEN:

ANDREW MORTON GARRETT
APPLICANT

AND:

PETER IVAN MACKS
FIRST RESPONDENT

STEPHEN JAMES DUNCAN
SECOND RESPONDENT

INTERNATIONAL VINTNERS AUSTRALIA PTY LTD
THIRD RESPONDENT

RICHARD JOHN OLIVER
FOURTH RESPONDENT

ADRIAN TISATO
FIFTH RESPONDENT

DEPUTY COMMISSIONER OF TAXATION
SIXTH RESPONDENT

NATIONAL AUSTRALIA BANK
SEVENTH RESPONDENT

DAVID PROUDMAN
EIGHTH RESPONDENT

SCOTT ALEXANDER EVANS
NINTH RESPONDENT

JUDGE:	LANDER J
DATE:	10 MAY 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. On 24 September 2004 the applicant, in these proceedings, was made bankrupt by a sequestration order made by Registrar Christie exercising her power pursuant to s 103 of the Federal Magistrates Act 1999 (Cth). The applicant sought a review of that decision, as he was entitled, pursuant to s 104 of the Federal Magistrates Act, which application was dismissed by Federal Magistrate Lindsay on 24 January 2005.

2. On 21 March 2006 the applicant commenced these proceedings against the nine respondents to these proceedings seeking the following final orders:

   ‘Pursuant to section 153B, 252B of the Bankruptcy Act 1966, on the grounds stated in the affidavits in evidence filed in this action, ADG 90 of 2004, ADG 187 of 2004 in the Federal Magistrates Court and in SAD 29 of 2005, SAD 318 of 2005 and SAD 5 of 2006, the applicant seeks the following orders:

   (1)that the order of sequestration made in action ADG 90 of 2004 on 24 September 2004 by Registrar Christie, be annulled;

   (2)that the first and ninth respondents pay unspecified costs and damages in respect of this action, ADG 90 of 2004 on…