Macks v Edge

[2006] FCA 1077

FEDERAL COURT OF AUSTRALIA

Macks v Edge [2006] FCA 1077

BANKRUPTCY – application for order under Bankruptcy Act 1996 (Cth), s 35A, that proceedings be transferred from Federal Court of Australia to Family Court of Australia – where trustee in bankruptcy alleges in Federal Court that transfers to bankrupt’s former spouse are void – where separate proceedings on foot in Family Court in which bankrupt’s former spouse seeks order against the trustee altering the interests of trustee in vested bankruptcy property – where Federal Court and Family Court both have jurisdiction in bankruptcy.

FAMILY LAW – power of Family Court of Australia to bind third parties – effect of Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth).

Held: power to transfer proceedings discretionary; benefits of transferring proceedings outweighed by benefits of proceedings remaining in Federal Court; application dismissed.

Bankruptcy Act 1966 (Cth) ss 35, 35A, 120, 121
Bankruptcy and Family Law Legislation Amendment Act 2005 (Cth)
Family Law Act 1975 (Cth) ss 4, 78, 79
Real Property Act 1886 (SA)

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 referred to
Deputy Commissioner of Taxation v Swain (1988) 20 FCR 507 referred to
Re Boscolo; Ex parte Botany Council (1996) 62 FCR 397 referred to
Re Sabri; Ex parte Sabri v Brien (1995) 60 FCR 131 referred to
The Queen v Ross-Jones; Ex parte Green (1984) 156 CLR 185 referred to

PETER IVAN MACKS v KERYN DAWN EDGE
SAD 291 OF 2005

BESANKO J
18 AUGUST 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 291 OF 2005

BETWEEN:	PETER IVAN MACKS Applicant
AND:	KERYN DAWN EDGE Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	18 AUGUST 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application by the respondent for an order transferring the proceedings to the Family Court is dismissed.

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 291 OF 2005

BETWEEN:	PETER IVAN MACKS Applicant
AND:	KERYN DAWN EDGE Respondent

JUDGE:	BESANKO J
DATE:	18 AUGUST 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application by the respondent seeking an order that the proceedings in this Court be transferred to the Family Court of Australia for hearing.

2. The proceedings were commenced in this Court on 25 October 2005.  The applicant is Mr Peter Ivan Macks in his capacity as trustee of the bankrupt estate of Mr Noel Ross Edge and he brings a claim against Mrs Keryn Dawn Edge, who is the respondent.  Mrs Edge was married to the bankrupt.  Her application for an order transferring the proceedings to the Family Court is opposed by the trustee.

3. The application is made under s 35A of the Bankruptcy Act 1966 (Cth) (‘the Bankruptcy Act’), which (relevantly) is in the following terms:

   ‘(1)Subject to subsection (2), where a proceeding is pending in the Federal Court, the Federal Court may, on the…