Gilbert, C.A. v Tripstar P/L

[1992] FCA 658

92

JUDGMENT NO. .... I --

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 407 of 1991
DNERAL DIVISION	)

BETWEEN: COLLEEN ANN GILBERT. BARRY JOHN GILBERT AND

ARTHUR HENRY BEETSON

Applicants

m:  TRIPSTAR PTY.LIMITED

First Respondent

&Q:  PEXSTAR PTY. LIMITED

Second Respondent

AND :  JUSTIN BAILEY LAMONT CRAIG

Third Respondent

AND-

_. MICHAEL JAMES CRAIG

Fourth Respondent

AND:  POWER JEFFREY & CO. PTY. LIMITED

Fifth Respondent

MINUTES OF ORDEq

JUDGE MAKING ORDER:	Drummond J
DATE OF ORDER:	31 August, 1992
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

apply, on notice to the first and second applicants,

1.        The action is struck out.

2.        The applicants pay the costs of all respondents of these proceedings, including all reserved costs and the costs of today, to be taxed.

3. The first and second respondents' cross-claim is
adjourned for further directions to Tuesday, 15
December, 1992 at 9.15 a.m..

4 .         The first and second respondents have liberty to

to bring their cross-claim back before the court, in
the event that either or both of the first and
second applicants obtain an order annulling their
respective sequestration orders prior to 15

December, 1992.

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

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 407 of 1991
mNERAL DIVISION	1

BETWEEN: COLLEEN ANN GILBERT, BARRY JOHN GILBERT AND

ARTHUR HENRY BEETSON

Applicants

m:  TRIPSTAR PTY.LIMITEQ

First Respondent

m:  REXSTAR PTY. LIMITED

Second Respondent

m:  JUSTIN BAILEY W O N T CRAIG

Third Respondent

m:  MICHAEL JAMES CRAIG

Fourth Respondent

m:  POWER JEFFREY & CO. PTY. LIMITED

Fifth Respondent

Goram:	Drummond J
Date	31 August, 1992

Place: Brisbane

EX TEMPORE REASONS FOR JUDGMENT

The evidence before me indicates that the third-

named applicant, Mr. Beetson, was adjudicated bankrupt on 25
June, 1992 and that the other two applicants, Mr. and Mrs.
Gilbert, were both adjudicated bankrupt on 23 July, 1992. The

Official Trustee appeared before me today to indicate that he

has not made any election under S. 60(2) of the Bankru~tcv	Act
1966 fCthl to prosecute the action brought by any of the

applicants in these proceedings. There is no application for

an extension of time by the Official Trustee in order to
consider further whether he will make that election.

m. Burns was given leave to appear before me today for Mr. and Mrs. Gilbert. He informed me from the bar table that an application was filed this morning for the annulment of the bankruptcies of Mr. and Mrs. Gilbert. However, he did

not seek leave to put before me any material from which any
assessment could be made as to whether there is any prospect
of an annulment being granted. It is therefore plain that the
action as presently constituted is brought by applicants who
have no standing to maintain the action, the title to maintain
the action being vested, upon the sequestration orders being
made, in the Official Trustee, who does not intend to pursue

or to further prosecute the action.

I note from my experience in presiding over

directions hearings in this action during the course of this

year that the course of these proceedings has been

characterised by repeated non-compliance with directions on

the part of all applicants. The applicants have, on several
occasions, been given indulgences by way of further time to
comply with directions and the fact that an application for
annulment is only filed today is consistent with the attitude
displayed by the applicants, Mr. and Mrs. Gilbert, to
directions given by the court in an attempt to bring the
action to a hearing in the course of this year.

I therefore propose to strike the action out.

I certify that this and the two
preceding pages is a true copy
of the reasons for judgment
herein of the Honourable Mr.

Justice Drummond.

Associate: P?'- Date : 31 August, 1992