House v Macks

[2003] FCA 813

FEDERAL COURT OF AUSTRALIA

House v Macks [2003] FCA 813

JOHN AUGUSTUS WILLIS HOUSE and ANOR v PETER IVAN MACKS TRUSTEE IN BANKRUPTCY – BANKRUPT ESTATE JOHN CHARLES WYNDHAM HOUSE AND PATRICIA IRENE HOUSE

S 492 of 2003

SELWAY J
25 JULY 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 492 of 2003

BETWEEN:

JOHN AUGUSTUS WILLIS HOUSE
FIRST APPLICANT

BETTY OLIVE HOUSE
SECOND APPLICANT

AND:

PETER IVAN MACKS TRUSTEE IN BANKRUPTCY – BANKRUPT ESTATE JOHN CHARLES WYNDHAM HOUSE AND PATRICIA IRENE HOUSE
RESPONDENT

JUDGE:

SELWAY

DATE OF ORDER:

25 JULY 2003

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application for leave to appeal the decision of O’Loughlin J dated 11 December 2002 be refused.

2.The applicants to pay the respondent’s costs fixed at $500.00.

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	S 492 OF 2003

BETWEEN:

JOHN AUGUSTUS WILLIS HOUSE
FIRST APPLICANT

BETTY OLIVE HOUSE
SECOND APPLICANT

AND:

PETER IVAN MACKS TRUSTEE IN BANKRUPTCY – BANKRUPT ESTATE JOHN CHARLES WYNDHAM HOUSE AND PATRICIA IRENE HOUSE
RESPONDENT

JUDGE:	SELWAY
DATE:	25 JULY 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for an extension of time to appeal from a decision of O’Loughlin J.  The application was instituted some five months late.  The applicants have filed an affidavit explaining firstly the reasons for the delay and secondly what arguments would be put if an extension of time were granted.  It is unnecessary to deal with the reasons for delay in the circumstances.  This is because it seems plain to me that the applicants have no prospects of success if leave were granted.

2. The decision of O’Loughlin J may have been misunderstood by the applicants.  However, it seems clear enough that what O’Loughlin J has held is that the applicants were not indebted directly to the Australian Taxation Office as had been alleged by the Australian Taxation Office, but were indebted to their son, Mr John Charles Wyndham House and his wife for an amount of $59,615.  This appears to be an amount which his Honour found was due from the parents to the son and his wife in relation to the sale of a business which his Honour found had been operated in partnership.

3. His Honour also made a deduction of $10,909.97 in relation to a payment which his Honour accepted had been made by the parents to the Australian Taxation Office on behalf of their son.  In consequence, his Honour ordered that Mr and Mrs House, the applicants, pay to the trustee of their son and his wife, the amount of $48,705.03.  In coming to that decision, his Honour was critical both of the Australian Taxation Office and of the trustee and for that reason made no order in relation to interest or costs.

4. The issue that the applicants would seek to pursue if an extension of time was granted is whether moneys are due from the applicants or perhaps from their son and his wife to the Australian Taxation Office.  In relation to any direct liability, that matter has already been resolved in favour of the applicants by O’Loughlin J.  In relation to the son and his wife, those issues do not arise in these proceedings directly.  For this reason it seems to me that the purported appeal has no prospect of success and it is better discharged at this stage.  Consequently, I refuse leave to extend time to institute an appeal.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:            25 July 2003

Counsel for the first and second Applicants:	The Applicants appeared in person
Counsel for the Respondent:	NG Rochow
Solicitor for the Respondent:	Lancione Partners
Date of Hearing:	25 July 2003
Date of Judgment:	25 July 2003