Macchia v Nilant

[2006] FMCA 1095

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MACCHIA v NILANT [2006] FMCA 1095

BANKRUPTCY – Declaration sought pursuant to ss.116 and 58 of Bankruptcy Act 1966 – whether Anshun estoppel applies – whether special circumstance – lengthy litigation history – application dismissed.

Bankruptcy Act 1966, ss.30(1)(b), 58, 116
Administration Act 1903 (WA), s.14
Limitation Act (WA) 2005

Macchia v Nilant(Trustee) [2006] FCA 213
Nilant v Macchia [2000] 104 FCA 238
Macchia v Nilant [2001] FCA 7
Re Macchia; Ex parte Macchia v Nilant [2000] FCA 353

Applicant: MARIO SILVERIO MACCHIA

Respondent: CHARLES PHILIPE LOUIS NILANT

File number: PEG 46 of 2006

Judgment of: McInnis FM

Hearing date: 15 May 2006

Date of last submission: 22 May 2006

Delivered at: Perth

Delivered on: 3 August 2006

REPRESENTATION

Counsel for the Applicant: Mr S. Smith

Solicitors for the Applicant: Lawton Gillon

Solicitor for the Respondent: Mr A. Carles

Solicitors for the Respondent: Carles Solicitors

ORDERS

1. The Application be dismissed.

2. The Applicant pay the Respondent’s costs to be taxed in default of agreement.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 46 of 2006

MARIO SILVERIO MACCHIA

Applicant

And

CHARLES PHILPE LOUIS NILANT

Respondent

REASONS FOR JUDGMENT

1. Mario Silverio Macchia (the Applicant) in an application filed 2 March 2006, seeks orders pursuant to the Bankruptcy Act 1966 (the Bankruptcy Act) against Charles Philipe Louis Nilant (the Respondent). The Respondent is sued in his capacity as trustee of the bankrupt estate of the Applicant.

2. The Applicant was declared bankrupt on 16 September 1991.  The Applicant filed a statement of affairs on 21 January 1994.  He was discharged from bankruptcy on 22 January 1997. 

3. The application before this court seeks the following orders:

   “2.A declaration pursuant to section 116 and 58 of the Bankruptcy Act 1966 that the chose in action for due administration is not after acquired property pursuant to the Bankruptcy Act 1966.

   3.All rights title and interest of Mr Mario Macchia (the Applicant) whose Bankruptcy started on 21 January 1994 and was discharged on 22 January 1997 pursuant to the Bankruptcy Act 1996 and whose mother died intestate on 21 March 1995 did not form part of the property of the bankrupt as the right of action could not and did not accrue until the letters of administration were granted to the Public trustee as Administrators on 25 August 1998, some 18 months after the Applicant's discharge took place.”

4. In support of the application, the Applicant filed and served an affidavit sworn by him on 2 March 2006.  That affidavit purports to set out background details and to some extent also contains legal argument, which in this instance is more appropriately dealt with by reference to the written and oral submissions made on behalf of the Applicant by his solicitor.

5. The parties to these proceedings have been engaged in an extensive litigation saga.  The facts and background to the current application were summarised in just one of many Federal Court proceedings between the parties in Macchia v Nilant(Trustee)