Mackay v Jonsson as trustee in Bankruptcy of the Estate of Kneipp

[2016] FCCA 2955

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACKAY & ORS v JONSSON AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF KNEIPP & ANOR [2016] FCCA 2955

Catchwords:
BANKRUPTCY – Where applicants seek to vary current arrangements to store disputed property – where specific orders only made a few months previous – where no property basis for variation is made out and application in a case is dismissed.

First Applicant: WENDY ANN MACKAY

Second Applicant: DANIEL JOHN ROBINSON

Third Applicant: ANNUNAKA PTY LTD ACN 051 633 062 (AS TRUSTEE FOR THE H.H. KNIEPP FAMILY TRUST)

First Respondent: ANTHONY JAMES JONSSON AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF HENRY HARVEY KNEIPP

Second Respondent: CAROLYN GATE

File Number: BRG 954 of 2014

Judgment of: Judge Coker

Hearing date: 10 February 2016

Date of Last Submission: 10 February 2016

Delivered at: Townsville

Delivered on: 10 February 2016

REPRESENTATION

Solicitors for the Applicant: Lee & Co

Solicitors for the Respondent: Williams Graham Carman

ORDERS

1. That the Applicants have leave to read and file an Amended Case document dated 9 February 2016.

2. That the Applicants have leave to rely upon an unsworn copy of the Affidavit or Mr Andrew Michael Wright on the condition that a sworn copy is filed by 4.00pm on 19 February 2016.

3. That leave be granted to preclude any further reference to the First Respondent Mr Anthony James Jonsson.

4. That the Application in a Case filed 20 November 2015 be dismissed.

5. That the substantive application be listed for a maximum of 5 days hearing on dates to be fixed in Townsville.

6. That the costs of the Interlocutory Application be costs in the cause.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOWNSVILLE

No. BRG 954 of 2014

WENDY ANN MACKAY

First Applicant

DANIEL JOHN ROBINSON

Second Applicant

ANNUNAKA PTY LTD ACN 051 633 062 (AS TRUSTEE FOR THE H.H. KNIEPP FAMILY TRUST)

Third Applicant

And

ANTHONY JAMES JONSSON AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF HENRY HARVEY KNEIPP

First Respondent

CAROLYN GATE

Second Respondent

REASONS FOR JUDGMENT

1. I do not intend to give lengthy reasons in relation to this matter.  I will simply say that on 20 November 2015 an application in a case was filed by Wendy Ann Mackay, Daniel John Robinson and Annunaka Pty Ltd against Anthony James Jonsson, as trustee in bankruptcy of the estate of Henry Harvey Kneipp and Carolyn Gate.  It has previously been noted that the proceedings as between the first, second and third respondents and Ms Gate continue but those involving the applicants and the Trustee in Bankruptcy have been discontinued and, costs have also been resolved as between the first, second and third applicants and the first respondent.  It is not necessary to further address that issue. 

2. The application in a case now before the Court seeks an order, basically, for the variation of orders that were previously given, in relation to arrangements with regard to the storage of certain items of property, including various antiques and what were described as objects d’art.  Those items are in dispute as between the first, second and third applicants and the respondent, Ms Gate.  Orders have been made with regard to proceedings in this court and listing the matter for trial, and, in fact, discussion has been held today as to the requirement for perhaps up to five days, though I would expect that all would hope that there would be less time required, noting the costs that have been expended to date and will no doubt continue to be expended. 

3. The order that is now sought, seeks for there to be a continued arrangement in relation to the secure storage and protection of the various items that are in dispute, but rather than they be stored at a professionally recognised place, that being Atkins Removals in Tasmania, it is suggested that the items be stored at the first and second applicants’ premises on behalf of all parties, that being a residence at 103 Corin Street, West Launceston in Tasmania.  Thereafter, orders are sought with regard to the removal and re-storage of the items and that such removal and re-storage be of a supervised nature, conducted under the guidance of the auctioneer and expert who previously gave evidence, Mr Andrew Wright. 

4. It was also noted that any costs of the removals from the business premises of Atkins Removals to the premises of the first and second applicants be borne by the first, second and third applicants but that such costs be costs in the cause.  I do not have, as I understand it, specific information as to what the costs might be in that regard, but note that it needs to be balanced against the ongoing expense that the first applicant certainly details in her affidavit material is an ongoing expense incurred with regard to storage.  The storage costs are $297 per four weeks. 

5. The orders that are sought by the first, second and third applicants are opposed by the respondent, Ms Gate, noting particularly that there has already been a determination with regard to the specific needs for very specialised storage and maintenance of the various items that are in dispute.  I accept that there is an expense incurred in relation to the storage of those items.  I note, however, that notwithstanding that there are obviously incidental proceedings and therefore incidental and perhaps significant expenses being incurred by all involved in these proceedings, they are not matters which should necessarily reflect upon the original decision made with regard to the need for appropriate and specific storage.

6. Whilst I would indicate, therefore, that I have certain concerns with regard to the expense being incurred by all parties in relation to this matter, I am not minded to make an order with regard to a change in the storage requirements in relation to the proceedings.  In any event, whilst I note that, pursuant to the original orders that were made, the requirements with regard to the storage of the items, and the costs associated with that, were to be met by the first, second and/or third applicants, it is not a situation where they would not then be able to be considered costs in the cause.

7. For what it is worth, I would simply recommend that the parties move as quickly as possible with regard to all associated proceedings so as to hopefully be in a position for this matter to be determined as soon as it can be listed.  In the circumstances, however, I am not satisfied that the application in a case is one that properly meets the requirements that would give rise to a change from a determination only given some months ago.  Accordingly, I intend to dismiss the application in a case of 20 November 2015. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Coker.

Date: 15 November 2016