Jones v Thomson
[2015] FCCA 896
•30 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JONES v THOMSON & ANOR | [2015] FCCA 896 |
| Catchwords: BANKRUPTCY – Interlocutory application for security – no prospect of the principal application succeeding – summary dismissal of that application. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.139ZQ, 170 Federal Circuit Court Rules 2001 (Cth) Privacy Act 1988 (Cth) |
| Purnell Motors Pty Ltd v Jones [2014] FCCA 620 Purnell Motors Pty Ltd v Jones (No.2) [2014] FCCA 1617 |
| Applicant: | RICHARD JONES |
| First Respondent: | FRASER THOMSON |
| Second Respondent: | JASON PORTER |
| File Number: | SYG 2492 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 30 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 30 March 2015 |
REPRESENTATION
The Applicant appeared in person by telephone
| Solicitors for the Trustee: | Mr J Bamford of Bamford Lawyers |
INTERLOCUTORY ORDERS
The Application filed on 8 September 2014 and the Application in a Case filed on 28 November 2014 are dismissed, pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth).
The trustee’s costs of the applications the subject of order 1 be costs in the administration of the bankrupt estate.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2492 of 2014
| RICHARD JONES |
Applicant
And
| FRASER THOMSON |
First Respondent
JASON PORTER
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an Application in a Case filed on 28 October 2014 from Jason Porter and Paul Gerard Weston, who are trustees of the bankrupt estate of Richard Jones. The trustees seek orders for Mr Jones to pay security in the sum of $40,000, or such other amount as may be ordered by the Court, within 30 days, in default of which proceedings by him would be stayed. Other ancillary relief is also sought in that application.
The principal proceedings were instituted by Mr Jones on 8 September 2014. In that application, Mr Jones sought to set aside a notice issued pursuant to s.139ZQ of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) in relation to a property at Waterfall Way, Dorrigo (Dorrigo property). The application also seeks relief in relation to asserted breaches of the Privacy Act 1988 (Cth), contests an issue of a conflict of interest allegedly suffered by lawyers acting for the trustee, complains of oppressive unlawful conduct by the trustee, asserts a breach of s.170(2) of the Bankruptcy Act, and asserts unlawful behaviour in relation to an alleged failure to provide a copy of the 139ZQ notice to Mr Jones. In an Application in a Case filed on 28 November 2014, Mr Jones seeks the same, as well as other ancillary relief.
The background to these proceedings was traversed in some detail in earlier proceedings in the Court. In particular, two judgments have been given. The first was Purnell Motors Pty Limited v Jones[1], and the second was Purnell Motors Pty Ltd v Jones (No.2)[2]. In the latter judgment, Judge Lloyd-Jones dismissed an application for annulment of the bankruptcy.
[1] [2014] FCCA 620
[2] [2014] FCCA 1617
The trustees and Mr Jones have been in dispute over three properties. Apart from the Dorrigo property, the subject of the present proceedings, there is a property in Leichhardt (Leichhardt property) and a property in Armidale (Armidale property). The Leichhardt property apparently was formerly owned by Mr Jones. However, there was a substantial mortgage to the Westpac Bank, and that property has been sold by the mortgagee. It appears that there was no equity in the property after the discharge of the mortgage.
The properties at Dorrigo and Armidale were transferred by Mr Jones to others prior to his bankruptcy. There is an issue of whether those transfers were in breach of a freezing order obtained elsewhere. The Armidale property was transferred by Mr Jones to a company, Crest Australia (Crest), which is apparently the trustee of his superannuation fund. The Dorrigo property was transferred to his former de facto partner, Ms Sue Hombsch.
Section 139ZQ notices were issued in respect of those properties as a consequence of the transfers and the bankruptcy. Crest has not complied with the notice issued to it. That noncompliance is likely to be the subject of some legal proceedings in the future. It is up to the trustees to decide whether to take further proceedings to attempt to recover that property. There is no present issue requiring adjudication.
As to the Dorrigo property, Ms Hombsch has complied with the notice issued to her. The trustees now hold that property, although the transfer has not yet been registered, because the trustees are not in funds to pay stamp duty on the transfer from Ms Hombsch.
In my view, the consequence of the compliance by Ms Hombsch with the 139ZQ notice issued to her is that there is no issue requiring adjudication in this Court as between Mr Jones and the trustee. Mr Jones is concerned that he sought to make provision for his former partner by the transfer of the Dorrigo property to Ms Hombsch. She has, however, not contested the 139ZQ notice and has complied with it. That is a matter for her. It is not for Mr Jones to seek to act, in effect, on behalf of his former partner, to assert any rights she may have had.
Having perused the material on which the parties rely, and having heard the solicitor for the trustees and Mr Jones, I have come to the conclusion that there is no prospect of Mr Jones’ application succeeding. In the circumstances, I see no utility in making an order for security sought in the trustees’ application. The trustees are, however, entitled to other relief.
I will order that the Application filed on 8 September 2014 and the Application in a Case filed on 28 November 2014 be dismissed, pursuant to rule 13.10(a) of the Federal Circuit Court Rules 2001 (Cth).
The trustees’ costs of the applications the subject of order 1 be costs in the administration of the bankrupt estate.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 April 2015
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