FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRAMPIANS CARPET CLEANING PTY LTD v MCLELLAND | [2010] FMCA 229 |
| BANKRUPTCY – Amendment to title of proceedings and name of debtor in sequestration order pursuant to the slip rule – whether error in debtor’s name deliberate. |
| Bankruptcy Act 1966, ss.134(4), 306 |
| Alexander Korda Film Productions Ltd v Columbia Pictures Corporation Limited [1946] 1 Ch 336 Schepis v Esanda Finance Corporation [2006] FMCA 905 Elders Ltd v Lloyd [2005] FMCA 1020 Van Reesema; Ex parte Giameos (1979) 27 ALR 509 Re McSwiney; Ex parte Davis [1986] FCA 405 Scottish Pacific Business Finance Pty Ltd [2005] FCA 670 Re Keith Laurence Draper; Ex parte Australian Society of Accountants [1989] FCA 10 Pearlman (Veneers) SA (Pty) Ltd v Bartels [1954] 1 WLR 1457; 3 All ER 659 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 Construction Pacific Management v Bianco (No 2) [2005] FMCA 460 Lohdia v Trust Company of Australia [2005] FMCA 150 Dimasi v Nangiloc Colignan Farms Pty Ltd 2007 (2007) 157 FCR 387 |
| Applicant: | GRAMPIANS CARPET CLEANING PTY LTD |
| Respondent: | RONALD ROYCE MCLELLAND |
| File Number: | MLG 511 of 2009 |
| Judgment of: | Riley FM |
| Hearing date: | 1 March 2010 |
| Date of Last Submission: | 1 March 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 1 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | No appearance |
| Solicitors for the Applicant: | Mendelsons Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr Rosenzweig |
| Solicitors for the Respondent: | Charles Fice Solicitors |
| Counsel for the Trustees, Mr Clyde Peter White and Mr Stephen John Michell: | Mr Galvin |
| Solicitors for the Trustees, Mr Clyde Peter White and Mr Stephen John Michell: | Mills Oakley Lawyers |
| Counsel for Mr Block: | Mr Kohn |
ORDERS
The title of this proceeding be amended so that the name of the respondent is amended to read “Ronald Royce McClelland, also known as Ron McClelland”.
Order 1 made on 24 November 2009 is amended by substituting the name “McClelland” for the name “McLelland”.
The interim application filed on 10 February 2010 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 511 of 2009
| GRAMPIANS CARPET CLEANING PTY LTD |
Applicant
And
| RONALD ROYCE MCLELLAND |
Respondent
REASONS FOR JUDGMENT
On 1 February 2010, the trustees of the bankrupt estate of Ronald Royce McLelland filed an application seeking:
a)an order that the name Ronald Royce McClelland be substituted for the name Ronald Royce McLelland in the sequestration order made on 24 November 2009; or, alternatively,
b)directions pursuant to s.134(4) of the Bankruptcy Act 1966 (“the Act”) that:
i)Ronald Royce McClelland be made bankrupt; and
ii)the applicants are trustees of the estate.
On 10 February 2010, Ronald Royce McClelland filed an application seeking an order that the sequestration order against the estate of Ronald Royce McLelland be set aside. In closing addresses, Ronald Royce McClelland’s counsel explained that in fact the application was only to be activated in the event that the original sequestration order was varied, and what would be sought to be set aside would be the new…
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- Case
- [2010] FMCA 229
- Decision Date
CaseChat Overview and Summary
The court examined the evidence presented and concluded that while the summons had been served on an individual with the surname McClelland, it was not definitively proven that this individual was the correct respondent, Ronald Royce McClelland. Additionally, the court noted discrepancies in the spelling of the respondent's name across various documents. Given these findings, the court ruled that the title of the proceeding needed to be amended to correctly identify the respondent as Ronald Royce McClelland. Furthermore, the court amended previous orders to reflect this corrected name and dismissed the interim application filed by the plaintiff.
The court's decision to amend the title of the proceeding and correct the respondent's name was grounded in ensuring that the legal process accurately identified the parties involved. By dismissing the interim application, the court upheld procedural correctness and maintained the integrity of the litigation process. The final orders reflected the court's determination to rectify the procedural errors and proceed with the correct identification of the respondent.
Orders
Orders of the court
1.
The title of this proceeding be amended so that the name of the respondent is amended to read “Ronald Royce McClelland, also known as Ron McClelland”.
2.
Order 1 made on 24 November 2009 is amended by substituting the name “McClelland” for the name “McLelland”.
3.
The interim application filed on 10 February 2010 is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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