George v Fletcher

Case [2008] FCA 1848

FEDERAL COURT OF AUSTRALIA

George v Fletcher (Trustee) [2008] FCA 1848

PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory decision of Federal Magistrate – whether decision attended by sufficient doubt to warrant reconsideration – whether Federal Magistrates Court has exclusive jurisdiction under Bankruptcy Act 1966 (Cth) in this matter

Held: leave to appeal refused – Federal Magistrate’s decision not attended by sufficient doubt to warrant reconsideration – matter properly belongs in Federal Magistrates Court

Bankruptcy Act 1966 (Cth) s 5, s 27, s 31
Federal Court of Australia Act 1976 (Cth) s 24(1)(d)

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited
Fencott v Muller (1983) 152 CLR 570 cited
Fletcher & George (No 5) [2008] FMCA 1628 cited
Goldberg v Morrow [2004] FCA 1490
Harrington v Rich [2008] FCAFC 61 cited
House v R (1936) 55 CLR 499 cited
Lomas v Winton Shire Council [2002] FCAFC 413 cited
Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2008] FCAFC 172 followed
Philip Morris Inc v Adam P Brown Fashions Pty Ltd (1981) 148 CLR 457 cited
Scott v Bagshaw (2000) 99 FCR 573 applied
Telstra Corporation Ltd v AAPT Ltd [1997] 38 IPR 539 cited

LAUREN KAY GEORGE v WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE, DR PETER IRONSIDE PTY LTD, DR PETER IRONSIDE, NATIONAL AUSTRALIA BANK, SUSAN LEWIS (IRONSIDE) and RICHARD SIEBERT

QUD 400 of 2008

COLLIER J
5 DECEMBER 2008
BRISBANE


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 400 of 2008
BETWEEN:

LAUREN KAY GEORGE
Applicant
AND:

WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE
First Respondent

DR PETER IRONSIDE PTY LTD
Second Respondent

DR PETER IRONSIDE
Third Respondent

NATIONAL AUSTRALIA BANK
Fourth Respondent

SUSAN LEWIS (IRONSIDE)
Fifth Respondent

RICHARD SIEBERT
Sixth Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

5 DECEMBER 2008

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The application filed 2 December 2008 be dismissed with costs.

2.The notice of motion filed 2 December 2008 be dismissed with costs.

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


The text of entered orders can be located using eSearch on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

QUD 400 of 2008
BETWEEN:

LAUREN KAY GEORGE
Applicant
AND:

WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF LAUREN KAY GEORGE
First Respondent

DR PETER IRONSIDE PTY LTD
Second Respondent

DR PETER IRONSIDE
Third Respondent

NATIONAL AUSTRALIA BANK
Fourth Respondent

SUSAN LEWIS (IRONSIDE)
Fifth Respondent

RICHARD SIEBERT
Sixth Respondent

JUDGE:

COLLIER J

DATE:

5 DECEMBER 2008

PLACE:

BRISBANE

REASONS FOR JUDGMENT

  1. I have before me an urgent application for leave to appeal against the decision of Burnett FM pursuant to s 24(1)(d) Federal Court of Australia Act 1976 (Cth) and a notice of motion relating to that application. The proceedings are urgent because the applicant, Ms George, seeks leave to appeal against…

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AGLC
George v Fletcher [2008] FCA 1848
Case
[2008] FCA 1848
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Ms. George, who is bankrupt, faced off against William John Fletcher, the trustee for her estate, alongside other respondents in a complex dispute involving property and assets. The trustee in bankruptcy filed an Amended Application seeking several declarations regarding the ownership of specific properties and items, as well as the enforceability of certain agreements. These included declarations about the validity of a Heads of Agreement, the vesting of legal and beneficial ownership of specific properties and items in the trustee, and the enforceability of a deed of settlement. Ms. George contested these claims and sought to stay the hearing of related matters in the substantive proceedings, citing separate ongoing proceedings in the Supreme Court of Queensland.

The central legal issues before the court were whether Ms. George's claims in the Supreme Court proceedings and the trustee's claims in the Federal Magistrates Court could proceed concurrently, and whether there was sufficient justification to stay the hearing of specific matters in the substantive proceedings. The court had to consider the overlap in facts and issues between the two sets of proceedings, and the impact of the trustee's joinder in the Supreme Court proceedings on the proceedings in the Federal Magistrates Court. Additionally, the court needed to determine if Ms. George's application for a stay was warranted, given the circumstances and the potential prejudice to the respondents.

The court found that there was a significant overlap in the facts and issues between the proceedings in the Supreme Court and the Federal Magistrates Court. Despite Ms. George's protestations, the court accepted the Federal Magistrate's finding that there was a common substratum of facts and issues. Given that the trustee in bankruptcy had been joined as a party in the Supreme Court proceedings, the court concluded that there was no valid reason to stay the hearing of the substantive matters. The court dismissed Ms. George's application for a stay, finding it unnecessary and potentially prejudicial to the other parties involved. The court also dismissed the application filed by Ms. George on 2 December 2008, along with the accompanying notice of motion, ordering her to pay the costs incurred by the respondents.

Orders

Orders of the court

1. The application filed 2 December 2008 be dismissed with costs.

2. The notice of motion filed 2 December 2008 be dismissed with costs.

Note:

Background

Background to the litigation

In Court this morning Ms George was self-represented, and the first, second, third and fourth respondents were represented by Counsel.Background facts Ms George is a bankrupt. An Amended Application before the learned Federal Magistrate, filed on 7 November 2008 by William John Fletcher as trustee for the bankrupt estate of Ms George (the trustee in bankruptcy), is currently listed for hearing in the Federal Magistrates Court at Brisbane on 8 December 2008. In these proceedings in the Federal Magistrates Court (the substantive proceedings) the trustee in bankruptcy seeks final declaratory orders in the following terms:1.A declaration that the Heads of Agreement dated 19 February 2008 remains valid and enforceable.2.A declaration that as at 24 February 2006 the legal and beneficial ownership of 130 Landing Road, Moggill vests in the trustee.3.A declaration that there is no trust in favour of the bankrupt’s minor son or any other person in respect of that property or any property stored or located there.4.A declaration that as at 24 February 2006 the legal and beneficial ownership of a Toyota Landcruiser and of a Hanoverian mare known as Stellamara vests in the trustee.5.A declaration that the deed of settlement between the trustee and Susan Jane Wilson dated 28 October 2008 remains valid and enforceable.6.An order that Susan Jane Wilson be joined to the proceeding.7.An order that Dr Peter Ironside Pty Ltd, Peter Ironside and the National Australia Bank be joined to the proceeding.8.That as at 24 February 2006 the legal and beneficial ownership of the items listed in Schedule A vests in the trustee.9.Any further or such order the Court deems fit. The application before me arises from a hearing in the substantive proceedings on 18 November 2008 before Burnett FM, where Ms George sought a stay of hearing of particular matters listed for hearing on 8 December 2008. The matters Ms George sought to have stayed in the substantive proceedings were as follows:1.The Heads of Agreement dated 19 February 2008 remain valid and enforceable.2.As at 24 February 2006, the legal and beneficial ownership of lot 30 on SP145714 County of Stanley, Parish of Moggill, title reference 50440445 (the Landing Place property) vests in the applicant as trustee of the bankrupt estate.3.There is no trust in favour of Alexandra George, the bankrupt, or any other person in respect of the Landing Place property; and4.As at 24 February 2006 the legal and beneficial ownership of items listed in schedule A vests the trustee of the bankrupt estate. These matters related to paras 1, 2, 3 and 8 of the trustee in bankruptcy’s Amended Application filed 7 November 2008. The application for a stay in the substantive proceedings before his Honour resulted from the commencement of separate proceedings by Ms George in the Supreme Court of Queensland (the Supreme Court proceedings) in April 2008. The Supreme Court proceedings involved claims by Ms George for declarations that she was trustee for her son in respect of property the subject of the substantive proceedings, in particular the Landing Place property. I note that the learned Federal Magistrate found (at [9]) that there was a common substratum of facts and issues arising in relation to claims by Ms George in the Supreme Court of Queensland, and claims by the trustee in bankruptcy in the substantive proceedings. This finding is not disputed by the respondents before me, although in Court this morning Ms George disputed his Honour’s finding that she was not necessarily in disagreement with this finding. I understand from submissions of Counsel for the trustee in bankruptcy that, after the trustee in bankruptcy was joined as a party to the Supreme Court proceedings by order of the Court, there was commonality between the parties to the Supreme Court proceedings and the parties to the substantive proceedings. The joinder of the trustee in bankruptcy to the Supreme Court proceedings is not in dispute.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

COLLIER J

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Ratio Decidendi

Legal Principle Established

Established by: COLLIER J

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