Macks as Trustee in Bankruptcy of the Estate of David Gerald Moore v Wilson

[2007] FCA 24

FEDERAL COURT OF AUSTRALIA

Macks as Trustee in Bankruptcy of the Estate of David Gerald Moore v Wilson [2007] FCA 24

PETER IVAN MACKS AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF DAVID GERALD MOORE v WAYNE STEPHEN WILSON AND GAYLE LAWTON
SAD 175 OF 2004
SAD 176 OF 2004

BESANKO J
23 JANUARY 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 175 OF 2004 SAD 176 OF 2004

BETWEEN:

PETER IVAN MACKS AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF DAVID GERALD MOORE
Appellant

AND:

WAYNE STEPHEN WILSON
First Respondent

GAYLE LAWTON
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	23 JANUARY 2007
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

As to Proceeding Number SAD 175 of 2004:

(1)The title of the appellant to the proceeding effective from 21 January 2005 is Mr Peter Ivan Macks as trustee in bankruptcy of the estate of David Gerald Moore.

(2)The trustee’s application for an extension of time under s 33 of the Bankruptcy Act 1966 (Cth) by notice of motion dated 20 June 2006 be dismissed.

(3)       By consent the appeal be dismissed.

(4)The appellant from 6 August 2004 to 20 January 2005 pay the respondents’ costs of the appeal during that period.

(5)Mr David Gerald Moore personally pay the respondents’ costs of the appeal in relation to the following matters:

(a)Perusing all affidavits sworn by Mr Moore and filed and served in the proceeding on and after 21 January 2005;

(b)Preparing, filing and serving affidavits sworn by Dominic Agresta on 30 May 2006, 13 June 2006 and 16 July 2006 respectively;

(c)The notice of motion dated 13 June 2006 and attendances before the Court on 22 June 2006, 1 November 2006 and 21 January 2007;

(d)The written submissions prepared by the respondents on 26 June 2006 and 10 November 2006.

As to Proceeding Number SAD 176 of 2004:

(1)The title of the applicant to the proceeding effective from 21 January 2005 is Mr Peter Ivan Macks as trustee in bankruptcy of the estate of Gerald David Moore.

(2)       By consent the application be dismissed.

(3)The applicant from 6 August 2004 to 20 January 2005 pay the respondents’ costs of the application during that period.

(4)Mr David Gerald Moore personally pay the respondents’ costs of the application in relation to the matters identified in paragraph (4) of the orders in Proceeding Number 175 insofar as they are not recovered in that proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 175 OF 2004 SAD 176 OF 2004

BETWEEN:

PETER IVAN MACKS AS TRUSTEE IN BANKRUPTCY OF THE ESTATE OF DAVID GERALD MOORE
Appellant

AND:

WAYNE STEPHEN WILSON
First Respondent

GAYLE LAWTON
Second Respondent

JUDGE:	BESANKO J
DATE:	23 JANUARY 2007
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for orders dismissing an appeal (Action Number 175 of 2004) and an application for leave to appeal (Action Number 176 of 2004). The application is made by the respondents to the appeal and application.

2. The appellant and applicant is a bankrupt. He was not a bankrupt at the time he filed and served the appeal and application on 6 August 2004. He was made a bankrupt when a sequestration order was made against his estate on 21 January 2005. The bankrupt’s trustee in bankruptcy is Mr Peter Macks.

3. The trustee did not elect to prosecute the appeal or application within the time prescribed under the Bankruptcy Act 1966 (Cth) (‘the Act’) and the appeal and application are deemed abandoned. The trustee did apply for an extension of time within which to elect to prosecute the appeal and application but that was done to hold the situation pending the outcome of the bankrupt’s challenge to his decision not to prosecute the appeal and application. It was clear that even though the trustee made that application he had decided not to prosecute the appeal and application. I have dealt with the bankrupt’s application challenging the trustee’s decision in a way unfavourable to the bankrupt. The trustee in bankruptcy no longer presses his application for an extension of time, and I will dismiss that application.

4. The trustee has control over the appeal and application and whether they are prosecuted: Cummings v Claremont Petroleum NL (1996) 185 CLR 124; s 60 of the Act. He consents to them being dismissed. I have power sitting as a single Judge to make orders for dismissal on this basis: s 25(2B)(b) of the Federal Court of Australia Act 1976 (Cth)

5. For a more detailed description of the facts and relevant events I refer to my reasons for judgment in Moore v Macks [2007] FCA 10 (‘the Moore v Macks judgment’).

6. By reason of his bankruptcy, the bankrupt had no right to appear before me. I heard submissions from him by leave. He opposes the orders dismissing the appeal and application. He submits that he has appealed from the Moore v Macks judgment and that I should not consider making the orders sought until that appeal is determined. At the end of his submissions he asked for an adjournment so that he could prepare further submissions and perhaps take legal advice. I reject that application. His role on this application is quite limited and, in fact, it might be said that absent any protection to the parties to the appeal, and in particular, the respondents, in terms of costs, the orders should be made simply having regard to the attitude of the trustee and the respondents. In any event, and on the assumption which I will make in his favour that I can have regard to his submissions, he has had ample opportunity to make submissions both yesterday and on prior occasions. Furthermore, the interests of the respondents must be considered. The appeal and application have been outstanding for a considerable period of time and the respondents are entitled to a measure of certainty in the ordering of their affairs and to a determination which will prevent the incurring of further costs.

7. In this case, the fact of an appeal from the Moore v Macks judgment is not a reason not to make the orders sought, or, if it is, it is clearly outweighed by the other relevant considerations. Orders should be made dismissing the appeal and application for leave to appeal.

8. The orders of the Court in Proceeding Number 175 of 2004 are as follows:

   (1)The title of the appellant to the proceeding effective from 21 January 2005 is Mr Peter Ivan Macks as trustee in bankruptcy of the estate of David Gerald Moore.

   (2)The trustee’s application for an extension of time under s 33 of the Bankruptcy Act 1966 (Cth) by notice of motion dated 20 June 2006 is dismissed.

   (3)       By consent the appeal is dismissed.

   (4)The appellant from 6 August 2004 to 20 January 2005 is to pay the respondents’ costs of the appeal during that period.

   (5)Mr David Gerald Moore personally is to pay the respondents’ costs of the appeal in relation to the following matters:

   (a)Perusing all affidavits sworn by Mr Moore and filed and served in the proceeding on and after 21 January 2005;

   (b)Preparing, filing and serving affidavits sworn by Dominic Agresta on 30 May 2006, 13 June 2006 and 16 July 2006, respectively;

   (c)The notice of motion dated 13 June 2006 and attendances before the Court on 22 June 2006, 1 November 2006 and 21 January 2007;

   (d)The written submissions prepared by the respondents on 26 June 2006 and 10 November 2006.

9. The orders of the Court in Proceeding Number 176 of 2004 are as follows:

   (1)The title of the applicant to the proceeding effective from 21 January 2005 is Mr Peter Ivan Macks as trustee in bankruptcy of the estate of Gerald David Moore.

   (2)       By consent the application is dismissed.

   (3)The applicant from 6 August 2004 to 20 January 2005 is to pay the respondents’ costs of the application during that period.

   (4)Mr David Gerald Moore personally is to pay the respondents’ costs of the application in relation to the matters identified in paragraph (4) of the orders in Proceeding Number 175 insofar as they are not recovered in that proceeding.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:       23 January 2007

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	D Agresta
Solicitor for the Respondent:	Iles Selley
Date of Hearing:	22 January 2007
Date of Judgment:	23 January 2007