Hudson v The Official Trustee & Ors (No.2)

[2007] FMCA 1537

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUDSON v THE OFFICIAL TRUSTEE & ORS (No.2) [2007] FMCA 1537

BANKRUPTCY – Costs.

Applicant: PETER GEORGE HUDSON

First Respondent: THE OFFICIAL TRUSTEE

Second Respondent: SCOTT DARREN PASCOE

Third Respondent: THE OFFICIAL RECEIVER FOR THE STATE OF QUEENSLAND

File number: BRG 372 of 2006

Judgment of: Wilson FM

Hearing date: 17 August 2007

Date of last submission: 17 August 2007

Delivered at: Brisbane

Delivered on: 17 August 2007

REPRESENTATION

The Applicant in person: No Appearance for applicant

Counsel for the First and Third Respondents: N/A

Solicitors for the Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr Looney

Solicitors for the Respondent: Sally Nash & Co

ORDERS

1. The application against the first and second respondents be dismissed.

2. Unless the applicant files a further application within 14 days evincing an intention to proceed against the third respondent, the application against the third respondent will stand dismissed.

3. The applicant pay the first and second respondents’ costs (including reserved costs) of and incidental to the application to be taxed, if not agreed.

4. This application is certified fit for Counsel.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 372 of 2006

PETER GEORGE HUDSDON

Applicant

And

THE OFFICIAL TRUSTEE

First Respondent

SCOTT DARREN PASCOE

Second Respondent

THE OFFICIAL RECEIVER FOR THE STATE OF QUEENSLAND

Third Respondent

REASONS FOR JUDGMENT

1. On 10 August 2007, I delivered judgment on two preliminary questions which were identified in the proceedings, and adjourned the matter to today to determine what future course the proceedings should take.  The applicant has not appeared today. 

2. On 1 September 2006, the second respondent applied for summary dismissal of the proceedings.  On 21 September 2006, the then first respondent applied for summary dismissal of the proceedings.

3. On 13 October 2006, I ordered that the current first respondent be substituted for the then first respondent, and adjourned the applications to 10 November 2006.  At that time, the two preliminary questions were identified and, as I have said, they have now been determined. 

4. The two applications for summary dismissal remain alive, but adjourned.  It seems to me that the appropriate course is that, unless the applicant shows cause why the proceedings should be allowed to continue, the two preliminary questions having been determined adversely to him, the proceedings should be summarily dismissed.

5. There is no further material from the applicant beyond that which was in existence at the time the matter was heard.  On that material, I would summarily dismiss the proceedings, and I so order in respect of the second respondent. 

6. Given that the current first respondent was substituted for the party which applied for summary dismissal, I consider that I can treat that application as continuing in force by the current first respondent, and I similarly order that the proceedings against it be summarily dismissed.

7. That leaves the proceedings against the third respondent. No application has been made by it for summary dismissal.  In my view, the appropriate course is to order that, unless the applicant files a further application on or before 31 August 2007 evincing an intention to proceed against the third respondent, the action against that party also stand dismissed. 

8. I order that the applicant pay the costs of the first and second respondents of and incidental to the proceedings, to be taxed, if not agreed.

9. I certify for counsel.

I certify that the preceding nine (09) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate:  Lynnette Chin

Date:  7 September 2007