Kobylinski & Anor v Walker

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KOBYLINSKI & ANOR v WALKER [2008] FMCA 89

BANKRUPTCY – Leave to take fresh steps in proceedings – whether leave to be granted – sufficient complicity and multiplicity of claims – whether leave ought to be granted conditionally.

Bankruptcy Act 1966 (Cth), ss.58(3)(b), 109

Fraser v Commonwealth of Taxation & Anor  (1996) 69 FCR 99
Singh v Official Trustee in Bankruptcy & Anor [2007] FMCA 1367

First Applicant: ADRIAN JOHN KOBYLINSKI

Second Applicant: ANNE MARIA KOBYLINSKI

Respondent: GEOFFREY WALKER

File number: PEG 221 of 2007

Judgment of: Lucev FM

Hearing date: 25 January 2008

Date of last submission: 25 January 2008

Delivered at: Perth

Delivered on: 25 January 2008

REPRESENTATION

Counsel for the Applicant: Mr Duncan

Solicitors for the Applicant: Gibson Lyons Lawyers

Counsel for the Respondent: Mrs McKenzie

Solicitors for the Respondent: McKenzie and McKenzie

ORDERS

1. Under section 58(3)(b) of the Bankruptcy Act the applicants have leave to take any further steps it considers necessary in proceeding 1893 of 2006 in the District Court of Western Australia, on the following conditions:

   (A)that the applicants will not take further steps in the District Court proceedings without giving 7 days notice to the Official Trustee in Bankruptcy, provided that on each occasion it is necessary to take a further step this period may be varied by agreement with the Official Trustee in Bankruptcy;

   (B)that the applicants will not oppose the Official Trustee in Bankruptcy being joined in the District Court proceedings at any time;

   (C)that the applicants will hold the property of the respondent the subject of the District Court proceedings, or any monies of the Respondent received in the District Court proceedings, for the Official Trustee in Bankruptcy on behalf of the bankrupt estate of the respondent;

   (D)that the applicants will notify the Official Trustee in Bankruptcy of any settlement proposed to be entered into in respect of the District Court proceedings concerning the property of the respondent and not enter into any such settlement unless consented to by the Official Trustee in Bankruptcy; and

2. The respondent pay the applicants’ costs of this application, if not agreed, to be taxed under 0.62 of the Federal Court Rules by a Registrar of this Court, and paid out of the respondent’s bankrupt estate in the priority fixed by s.109(1) of the Bankruptcy Act 1966.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 221 of 2007

ADRIAN JOHN KOBYLINSKI

First Applicant

ANNE MARIA KOBYLINSKI

Second Applicant

And

GEOFFREY WALKER

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

(As corrected)

1. This is an application under s.58(3)(b) of the Bankruptcy Act 1966 (Cth) by which the applicants seek leave to continue proceedings in District Court action 1893 of 2006 against the respondent, Geoffrey Walker, and, if necessary, to join other parties an seek discovery. Copies of the application have been served on the respondent and on the Official Trustee in Bankruptcy.

2. The respondent became bankrupt on 14 May 2007, with total creditors, he says, of $303,700, of which $300,000 was…