FEDERAL COURT OF AUSTRALIA
Low v Barnet (Trustee); In the Matter of Mathai [2014] FCA 1187
Citation: Low v Barnet (Trustee); In the Matter of Mathai [2014] FCA 1187 Parties: LOW MOOI KWEE (ALSO KNOWN AS MONICA LOW) v KATHERINE BARNET AS TRUSTEE OF THE BANKRUPT ESTATE OF MATHEW KERALAVAKAYIL MATHAI; IN THE MATTER OF THE BANKRUPT ESTATE OF MATHEW KERALAVAKAYIL MATHAI File number: NSD 769 of 2014 Judge: FOSTER J Date of judgment: 6 November 2014 Catchwords: BANKRUPTCY – whether the Court should grant leave to a discharged bankrupt in a proceeding brought by the only creditor of the bankrupt estate for relief under s 178 of the Bankruptcy Act 1966 (Cth) Legislation: Bankruptcy Act 1966 (Cth), ss 32, 82, 109, 178
Bankruptcy Regulations 1996 (Cth), reg 6.01
Federal Court (Bankruptcy) Rules 2005, r 2.04Cases cited: Low v Barnet (Trustee); In the Matter of Mathai [2014] FCA 728 Date of hearing: 24 October 2014 Date of last submissions: 30 October 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: Mr BA Coles QC and Ms J Muir Solicitor for the Applicant: Matthews Folbigg Pty Ltd Counsel for the Respondent: Mr S Golledge Solicitor for the Respondent: TressCox Lawyers Counsel for the Applicant on the Interim Application (Mr Mathew Mathai): Mr MGR Gronow Solicitor for the Applicant on the Interim Application (Mr Mathew Mathai): Maddocks Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 769 of 2014
IN THE MATTER OF THE BANKRUPT ESTATE OF MATHEW KERALAVAKAYIL MATHAI
BETWEEN: LOW MOOI KWEE (ALSO KNOWN AS MONICA LOW)
ApplicantAND: KATHERINE BARNET AS TRUSTEE OF THE BANKRUPT ESTATE OF MATHEW KERALAVAKAYIL MATHAI
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
6 NOVEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to r 2.04 of the Federal Court (Bankruptcy) Rules 2005 and subject to any order revoking leave, Mathew Keralavakayil Mathai have leave to be heard in this proceeding upon condition that:
(a)He be represented by a suitably qualified lawyer;
(b)The amount of security provided by the said Mathew Keralavakayil Mathai pursuant to Order 1(b) made by the Court on 4 July 2014 in proceeding NSD 310 of 2014 also stand as security for any adverse costs orders that may be made against him in this proceeding;
(c)The said Mathew Keralavakayil Mathai be responsible for his own costs of and incidental to his intervention herein to the intent that it shall not be open to him to seek an order for costs against either the applicant or the respondent no matter what the outcome of the present proceeding may be;
(d)Subject to any further or other order of the Court, the intervention by the said Mathew Keralavakayil Mathai be limited to:
(i)The filing and service of one Written Submission of no more than ten (10) pages in length which Submission shall be filed in proceeding NSD 310 of 2014 only after and in light of the…
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- Low v Barnet (Trustee) [2014] FCA 1187
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- [2014] FCA 1187
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CaseChat Overview and Summary
The court considered the evidence and arguments presented by both parties. The judge ruled that Mathai should be permitted to participate in the proceedings, but there was no justification for requiring him to post additional security. The court reasoned that the costs incurred by the proceeding would not significantly impact the other parties, as it would be heard simultaneously with the related proceeding. The judge proposed to make orders similar to those made in the related proceeding, with some modifications, including prohibiting Mathai from filing evidence given that his application to do so had been refused. The court also decided to make appropriate pre-trial directions.
The final orders included granting Mathai leave to be heard in the proceeding, subject to certain conditions, such as being represented by a qualified lawyer and being responsible for his own costs. The court also set out a timetable for the submission of written materials and the final hearing, which would take place at the same time as the final hearing of the related proceeding. The judge emphasised the importance of maintaining a structured and efficient process to ensure that the proceedings were managed effectively.
Orders
Orders of the court
1. Pursuant to r 2.04 of the Federal Court (Bankruptcy) Rules 2005 and subject to any order revoking leave, Mathew Keralavakayil Mathai have leave to be heard in this proceeding upon condition that:
(a) He be represented by a suitably qualified lawyer;
(b) The amount of security provided by the said Mathew Keralavakayil Mathai pursuant to Order 1(b) made by the Court on 4 July 2014 in proceeding NSD 310 of 2014 also stand as security for any adverse costs orders that may be made against him in this proceeding;
(c) The said Mathew Keralavakayil Mathai be responsible for his own costs of and incidental to his intervention herein to the intent that it shall not be open to him to seek an order for costs against either the applicant or the respondent no matter what the outcome of the present proceeding may be;
(d) Subject to any further or other order of the Court, the intervention by the said Mathew Keralavakayil Mathai be limited to:
(i) The filing and service of one Written Submission of no more than ten (10) pages in length which Submission shall be filed in proceeding NSD 310 of 2014 only after and in light of the Written Submissions of the applicant and of the respondent which address all claims in this proceeding and in proceeding NSD 310 of 2014 and shall be confined to such relevant matters as are not addressed at all in the respondent’s submissions or which, in the reasonable opinion of Mr Mathai’s legal representatives, have not been addressed adequately in those submissions; and
(ii) Appearing at the hearing represented by a suitably qualified lawyer.
2. The Interim Application filed by the said Mathew Keralavakayil Mathai on 10 October 2014 otherwise be dismissed.
3. The taxed costs of both the applicant and the respondent of and incidental to the said Interim Application be paid out of the estate of the said Mathew Keralavakayil Mathai.
4. By 20 November 2014, the applicant file and serve in proceeding NSD 310 of 2014 only a single Written Submission in which she addresses all claims which she intends to press in this proceeding and in proceeding NSD 310 of 2014 together with a List of the Authorities upon which she intends to rely.
5. By 3 December 2014, the respondent file and serve in proceeding NSD 310 of 2014 only a single Written Submission in which she addresses all claims which the applicant intends to press in this proceeding and in proceeding NSD 310 of 2014 together with a List of the Authorities upon which she intends to rely.
6. By 10 December 2014, Mathew Keralavakayil Mathai, the former bankrupt, file and serve in proceeding NSD 310 of 2014 only a single Written Submission of no more than ten (10) pages in length in which he addresses such matters as are raised on behalf of the applicant in the Written Submission filed and served by her pursuant to Order 4 above which, in the reasonable opinion of Mr Mathai’s legal representatives, have not been addressed at all or have not been addressed adequately by the respondent together with a List of the Authorities upon which he intends to rely.
7. By 12 December 2014, the applicant file and serve a Written Submission in Reply (if any).
8. By 12 December 2014, the solicitors for the applicant lodge with the Associate to Foster J:
(a) A Judge’s working copy of the then current Originating Application in this proceeding and in proceeding NSD 310 of 2014;
(b) A Judge’s working copy of all affidavits (including exhibits and annexures) upon which the parties intend to rely at the final hearing of this proceeding and proceeding NSD 310 of 2014; and
(c) Two (2) copies of an agreed Tender Bundle (if required) duly indexed and paginated containing a copy of all documents additional to those which are exhibited or annexed to affidavits to be read at the hearing which are intended to be deployed in any way at the final hearing of this proceeding or at the final hearing of proceeding NSD 310 of 2014.
9. The evidence in this proceeding be evidence in proceeding NSD 310 of 2014 and the evidence in proceeding NSD 310 of 2014 be evidence in this proceeding.
10. The final hearing of this proceeding take place at the same time as the final hearing of proceeding NSD 310 of 2014.
11. The said final hearing be confirmed as commencing at 10.15 am on 16 December 2014 before Foster J with an estimate of two (2) days.
12. The parties and Mathew Keralavakayil Mathai have liberty to apply on three (3) days’ notice or on such shorter notice as a Judge might allow.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Yesterday (5 November 2014), I informed the parties and the former bankrupt of the terms of my rulings on the objections taken by the trustee to Ms Low’s evidence. I have marked as MFI-1 and placed in the Court file the document in which those rulings are set out.CONSIDERATION All of the affidavit evidence to be relied upon by the parties in proceeding NSD 310 of 2014 has now been filed and served. That evidence will also be relied upon in this proceeding. The affidavit sworn by Mr Mullette on 25 July 2014 and filed in this proceeding on the same day will also be read and relied upon by Ms Low in proceeding NSD 310 of 2014. As I have already mentioned, I have now ruled upon the trustee’s objections to Ms Low’s affidavit evidence sought to be read and relied upon by her in both proceedings. Subject to ruling upon any objections to be taken by Ms Low to the evidence to be relied upon by the trustee and subject to the tender of additional documentary material, the evidence-in-chief of both parties in both proceedings is now known. The former bankrupt seeks to be involved in this proceeding to the same extent as he has been permitted to be involved in proceeding NSD 310 of 2014 save that:(a)He does not accept that he should have to post additional security for the parties’ costs of the present proceeding; and(b)He now wishes to be allowed to file, serve, read and rely upon in both proceedings an affidavit in the form of the draft affidavit annexed to his affidavit sworn on 9 October 2014 and marked with the letters “MKM-1” and filed in this proceeding. At pars 10, 14 and 15 of his affidavit sworn on 9 October 2014, the former bankrupt said: 10I am seeking leave to be heard in this proceeding on the same basis as I was granted to be heard in proceeding NSD310/2014, save for the requirement to provide any additional security for costs. I consider that I should not have to give further security for costs, because this proceeding arises from the same facts and covers the same subject matter as proceeding NSD 310/2014, so that no additional costs would be incurred by my appearing and being heard in it. I only proposed to file one affidavit in both proceedings, and to make one set of submissions (though the submissions would address the relief sought by the applicant under both s 109(10) and 178 of the Bankruptcy Act 1966 (Cth)).…14I am also seeking an order from this Honourable Court that I be granted leave to file and serve the affidavit exhibited at “MKM-1” in this proceeding and in proceeding NSD 310/2014.15My Affidavit seeks to respond to matters deposed to in the Affidavit of Philip Leong sworn 26 February 2014 and Affidavit of Stephen Mullette sworn 3 June 2014 and provide clarification to the Court in respect of those matters. In submissions made to the Court both in writing and orally on behalf of the former bankrupt, Counsel for the former bankrupt accepted that the Court’s decision as to whether the former bankrupt should be permitted to file an affidavit in the form of the draft notified in his affidavit sworn on 9 October 2014 to a large extent depended upon the rulings which I proposed to make in respect of the evidence sought to be read and relied upon by Ms Low in both proceedings. Counsel for the former bankrupt frankly accepted that the evidence sought to be led by his client was, for the most part, responsive to evidence sought to be led by or on behalf of Ms Low and that, if this latter body of evidence was reduced, that would have an impact upon the admissibility of the evidence sought to be led by the former bankrupt.