Macchia v Nilant (Trustee)

Case [2006] FCA 213

FEDERAL COURT OF AUSTRALIA

Macchia v Nilant (Trustee) [2006] FCA 213

PRACTICE AND PROCEDURE – summary dismissal – Anshun estoppel – special circumstances ‑ abuse of process – relitigation of issues

BANKRUPTCY – statements of affairs – whether to be treated as having been filed at a date earlier than it was actually filed

Bankruptcy Act 1966 (Cth) Pt X, ss 30, 30(1), 30(1)(b), 33(1)(c), 33A, 33A(3), 54, 54(1), 55(3A), 146, 149, 149(1), 149(3), 188, 306, 306(1)
Bankruptcy Legislation Amendment Act 2002 (Cth)

Federal Court Rules O 20 r 2(1)

Re; Mario Silverio Macchia Ex parte; Mario Silverio Macchia v Charles Philippe Louis Nilant as Trustee of the Bankrupt Estate of Mario Silverio Macchia [1997] FCA 246 cited
Re; Rohde (1993) 42 FCR 149 cited
Nilant v Macchia (1997) 78 FCR 419 cited
Macchia v Nilant [2000] FCA 353 cited
Nilant v Macchia (2000) 104 FCR 238 cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 applied
Dumitrasku v Official Receiver in Bankruptcy [2003] FMCA 477 distinguished
Baral v Official Trustee in Bankruptcy [1999] FCA 77 distinguished
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 cited
Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 10 applied
Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1669 applied
State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81‑423 applied
Webster v Lampard (1993) 177 CLR 598 cited

MARIO SILVERIO MACCHIA v CHARLES PHILIPPE LOUIS NILANT (AS TRUSTEE OF THE BANKRUPT ESTATE OF MARIO SILVERIO MACCHIA)
WAD 127 OF 2005

SIOPIS J
13 MARCH 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 127 OF 2005

BETWEEN:

MARIO SILVERIO MACCHIA
APPLICANT

AND:

CHARLES PHILIPPE LOUIS NILANT
(AS TRUSTEE OF THE BANKRUPT ESTATE OF MARIO SILVERIO MACCHIA)
RESPONDENT

JUDGE:

SIOPIS J

DATE OF ORDER:

13 MARCH 2006

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1The applicant’s application filed on 2 June 2005 and amended on 1 August 2005 is dismissed.

2The applicant is to pay the costs of the respondent’s notice of motion and of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 127 OF 2005

BETWEEN:

MARIO SILVERIO MACCHIA
APPLICANT

AND:

CHARLES PHILIPPE LOUIS NILANT
(AS TRUSTEE OF THE BANKRUPT ESTATE OF MARIO SILVERIO MACCHIA)
RESPONDENT

JUDGE:

SIOPIS J

DATE:

13 MARCH 2006

PLACE:

PERTH

REASONS FOR JUDGMENT

  1. This is an application by the respondent by notice of motion for the summary dismissal, alternatively a permanent stay of an application made by the applicant on 2 June 2005.  The respondent relies upon O 20 r 2(1) of the Federal Court Rules (‘the Rules’) and the inherent jurisdiction of the Court.

  2. The applicant in the substantive application is a discharged bankrupt. He was declared bankrupt by a sequestration order made by this Court on 16 September 1991 and was, pursuant…

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AGLC
Macchia v Nilant (Trustee) [2006] FCA 213
Case
[2006] FCA 213
Decision Date

CaseChat Overview and Summary

Macchia v Nilant (Trustee) was a case before the Supreme Court of Western Australia where the applicant, Macchia, sought to challenge certain actions taken by Nilant, the respondent, who was the trustee of Macchia’s bankrupt estate. The dispute centered around the respondent's conduct during the administration of the applicant's bankruptcy and the applicant's attempts to relitigate matters that had already been settled. The case involved complex procedural issues, primarily concerning the enforcement of a deed of release that had been executed by the parties, which included a clause barring further proceedings relating to the bankruptcy except in certain specified circumstances.

The primary legal issues before the court were whether the applicant was attempting to relitigate matters that had already been decided and whether the applicant's current claims were barred by the terms of the deed of release. Specifically, the court needed to determine if the applicant's claims were an abuse of process and whether they disclosed a reasonable cause of action. The respondent argued that the applicant was attempting to circumvent the terms of the deed of release by bringing claims that had already been settled.

The court, in dismissing the applicant's claims, found that the applicant was indeed attempting to relitigate matters that had already been settled and that the terms of the deed of release clearly barred the current claims. The court held that the applicant's claims were an abuse of process and that they disclosed no reasonable cause of action. The court emphasized that the applicant had already been given an opportunity to pursue these claims and had chosen to settle them by entering into the deed of release. The court concluded that allowing the applicant to proceed with the current claims would undermine the integrity of the judicial process and the terms of the settlement agreement.

In light of these findings, the court dismissed the applicant's application in its entirety and ordered the applicant to pay the respondent's costs associated with the notice of motion and the application.

Orders

Orders of the court

1 The applicant’s application filed on 2 June 2005 and amended on 1 August 2005 is dismissed.

2 The applicant is to pay the costs of the respondent’s notice of motion and of the application.

Background

Background to the litigation

There was no case made by the applicant at the hearing of the second application before Lee J in 2000, nor at the hearing before the Full Court in 2000, that the applicant had made a statement of affairs dated 7 October 1991 and delivered it to the respondent. Indeed, the finding by the Full Court that the applicant made no attempt to make a statement of affairs until 6 April 1993 at the earliest, is at the heart of the Full Court’s decision. It was a crucial finding on which the whole decision rested.Further background In addition to the legal proceedings referred to above, the applicant also took proceedings against the respondent for compensation in respect of the manner in which the respondent had carried out his duties as trustee of the applicant’s bankrupt estate. These proceedings included an action against the respondent in the Supreme Court of Western Australia for the negligent conduct of the applicant’s bankruptcy administration. On 20 May 2002, the applicant and the respondent entered into a deed of release in respect of mutual claims made by each of the parties against each other in the various proceedings then pending. Pursuant to the deed of release the respondent agreed to pay the applicant a settlement sum. Clause 4 of the deed of release is particularly relevant to these proceedings. Clause 4 provides as follows:‘4. BAR TO PROCEEDINGS4.1Party not to take actionSubject to clause 4.3, a Party must not at any time take or continue any action, suit or proceeding, or make any claim or demand of any nature against the other Party relating to, or arising out of, or connection with, the Dispute or Macchia’s bankruptcy except that the terms of this Document do not affect, limit or restrict:(a)any issue between the Parties in relation to the estate of Macchia’s mother;(b)the existing rights of any party to receive a distribution or benefit from that estate; or(c)any right of Nilant or Macchia’s creditors in relation to any property or income of Macchia which Macchia failed to disclose to Nilant and which would have been vested in Nilant as his trustee in bankruptcy or been available to his creditors.’The respondent’s notice of motion The respondent sought the summary dismissal or a permanent stay of the claims made in the substantive application by relying on the inherent power of the Court to prevent an abuse of process, alternatively upon O 20 r 2(1) of the Rules. The gravamen of the respondent’s argument is that by his current application the applicant is attempting to relitigate a matter which has already been litigated. Further, as to the claim made by the applicant in par 4 of his amended application, the respondent submitted that this claim should, in any event, be summarily dismissed because the applicant’s claim discloses no reasonable cause of action. In support of his motion for summary dismissal, the respondent relied upon his affidavit sworn on 14 July 2005. Annexed to that affidavit are two affidavits which the respondent says were filed in relation to the first application heard by Lee J in April 1997. One of the affidavits was sworn by the applicant on 20 March 1997, and the other was sworn by Mr Cacho on 3 April 1997. In his affidavit the applicant made reference at par 5 and par 6 to the meeting with Mr Cacho. The relevant paragraphs read as follows:‘5.On 7 October 1994 [sic] I delivered to Charters & Co all documentation requested in the letter of 2 October 1991. I delivered this documentation by hand. Included in this documentation was another completed statement of affairs.6.I remember the matter clearly as I can recall upon attending Charters & Co Mr Richard Catcho [sic] whom I was dealing with at Charters & Co, was outside on the street. He was talking to an older gentleman to whom I was introduced by Mr Catcho [sic] as being Mr Richard Catcho’s [sic] father. I handed him all the documents which included my statement of affairs as he said there was no need to go upstairs to his office. This was done on 7 October 1991.’

Evidence

Evidence Before The Court

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Decision

Reasons for decision

SIOPIS J

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Ratio Decidendi

Legal Principle Established

Established by: SIOPIS J

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