Kennedy v Collett

[2003] FCA 1412

FEDERAL COURT OF AUSTRALIA

Kennedy v Collett [2003] FCA 1412

DAVID KENNEDY (TRUSTEE IN BANKRUPTCY) v JOYCE BEULAH FLORENCE COLLETT & KRISTENA BLUNDELL

S 7008 of 2003

MANSFIELD J
13 NOVEMBER 2003
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 7008 OF 2003

BETWEEN:

DAVID KENNEDY (TRUSTEE IN BANKRUPTCY)
APPLICANT

AND:

JOYCE BEULAH FLORENCE COLLETT
FIRST RESPONDENT

KRISTENA BLUNDELL
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

13 NOVEMBER 2003

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.Under s 48 of the Federal Court of Australia Act 1976 (Cth) these proceedings be transferred from the South Australia District Registry to the New South Wales District Registry of the Court.

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 7008 OF 2003

BETWEEN:

DAVID KENNEDY (TRUSTEE IN BANKRUPTCY)
APPLICANT

AND:

JOYCE BEULAH FLORENCE COLLETT
FIRST RESPONDENT

KRISTENA BLUNDELL
SECOND RESPONDENT

JUDGE:	MANSFIELD J
DATE:	13 NOVEMBER 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application by the first respondent for an order under s 48 of the Federal Court of Australia Act 1976 (Cth) that the proceedings be transferred from the South Australia District Registry to the New South Wales District Registry of the Court. It is opposed by the applicant. I am informed by counsel for the applicant that by reason of discussions which have taken place between the applicant and the second respondent, who has not appeared despite being served, it is unlikely that the proceedings will be maintained against the second respondent. On that basis I do not have further regard to her interests.

2. The principal application is for a declaration under s 121 of the Bankruptcy Act 1966 that certain mortgages granted by Carl Kenneth Collett (Mr Collett), apparently the son of the first respondent, in favour of the first respondent are void as against the applicant.  The applicant is now the trustee in bankruptcy of Carl Kenneth Collett.  A sequestration order was made against his estate in New South Wales on 30 October 1996.

3. The present applicant is the third in succession of the trustees of the bankrupt estate of Mr Collett.  I am informed that the present applicant is a member of the firm Deloittes and that the earlier two trustees were also members of the firm Deloittes.  The trusteeship in its practical administration moved to Adelaide with the applicant.  There was no other particular consideration which led to it being moved to Adelaide nor, in a general sense, does the present application concern the continued administration of the bankrupt estate.  It can be conducted where the applicant wishes it to be conducted.  The issue is as to the proper place of the present proceedings.

4. As I have noted, the application is to have declared void as against the applicant the grant of certain mortgages over land in New South Wales.  The mortgages were granted on 22 March 1995 (according to the statement of claim) and registered in the New South Wales Lands Titles Office.  So far as I can determine the principal witnesses for the respondents will be the first respondent and the bankrupt, Mr Collett.  They are both resident in New South Wales.  The evidence indicates that the first respondent is in poor health and it would be very difficult if she were to be required to attend a hearing in Adelaide.

5. I have no information about other witnesses other than to infer, as I do, that the applicant himself would be likely to give evidence at the hearing, but that his evidence would not be likely to be much in contest as his knowledge of the particular transactions would be that discerned from examination of documents and other material procured in the course of his role as trustee and, perhaps, with some expert evidence as to the state of the financial affairs of the bankrupt at the time of the mortgages reconstructed from documentary material and other information available to him.

6. The proceedings have been progressed to the point of the close of pleadings.  The remaining interlocutory processes are relatively straightforward.  They involve discovery and the exchange of witness statements and perhaps other minor matters.  There is no reason why those interlocutory matters cannot be addressed by telephone directions, if necessary.  I do not see in that circumstance that the pre-trial conduct of the proceedings is of particular moment in the decision which I am asked to make, given the nature of the allegations in the statement of claim, the location of the first respondent and of Mr Collett and the first respondent's state of health.

7. In my view this is a matter where the Court would direct that the trial of the matter take place in New South Wales.  Although it would be possible for the trial to take place with the first respondent giving evidence by video link, where the allegations are of the nature that the statement of claim asserts and where they may involve a need to measure the credibility of the first respondent as well as of the bankrupt, in my view it is preferable that the hearing take place with the first respondent present in person.

8. To the extent to which the applicant needs to give evidence, it may be that his evidence could be given by video link if the hearing were to take place in New South Wales.  To the extent to which he otherwise wishes to attend the hearing to be able to give instructions, he may need to attend the hearing, or he may be in a position to do so by giving instructions by telephone.

9. I accept that the estate is not of much dimension.  The costs of the present application are being borne by the applicant and the solicitors' costs, subject to the outcome of the proceedings, will be borne by the solicitors.  It is appropriate in the circumstances that an order be made which would have the effect of causing a change of solicitors.  However, on the material, the transfer of the proper place to New South Wales would be unlikely to have that consequence.  The applicant is prepared to pay the costs of the solicitors he has instructed to attend the hearing in New South Wales, if that is where it should take place.  On the other hand, I do not have any reason to think that, putting aside the state of health of the first respondent, she has the resources to continue to instruct solicitors and to pay the additional costs which would be incurred in the hearing taking place in Adelaide.

10. In making the decision which I am required to make, I have regard to the principles which are discussed by the Full Court in National Mutual Life v Sentry Corporation (1988) 19 FCR 155, particularly at 162 to 163. I have considered the residence of the parties, the place of residence of the likely witnesses, the relative expense to the parties of the proceeding continuing to be conducted in the South Australia or in the New South Wales district registries. I have considered where the cause of action arose. I have considered the convenience of the Court and the interests of justice.

11. I am mindful of the fact that if the proceeding were to stay in Adelaide, it is likely that it could be listed for hearing early in 2004.  I do not know what the position is in New South Wales as the matter will be referred to the docket of another judge.  However I have no reason to think that the hearing then will not take place expeditiously.  It is not a complicated matter.  The conduct of the proceeding is not such that the knowledge o the present docket judge as to the allegations or as to the pre‑trial procedures cannot readily be picked up by another judge.

12. Having regard to all those matters, in my judgment the case can be conducted or continued most suitably in the New South Wales District Registry, bearing in mind the interests of all the parties, the ends of justice in the determination of the issues, and the most efficient administration of the Court.

13. I therefore make an order under s 48 of the Federal Court of Australia Act 1976 (Cth) that these proceedings be transferred from the South Australia District Registry to the New South Wales District Registry of the Court.

14. Costs of today, including the costs of the motion, should be costs in the cause.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             1 December 2003

Counsel for the Applicant:	Mr A O'Halloran
Solicitor for the Applicant:	Kelly & Co.
Counsel for the Respondents:	Mr P Slattery
Solicitor for the Respondents:	Minter Ellison
Date of Hearing:	13 November 2003
Date of Judgment:	13 November 2003