Macquarie Leasing Pty Ltd v Culleton

Case [2015] FCCA 524


FEDERAL CIRCUIT COURT OF AUSTRALIA

MACQUARIE LEASING PTY LTD v CULLETON [2015] FCCA 524

Catchwords:
BANKRUPTCY – Creditors petition – whether requirements for issue of sequestration order made out – whether debtor’s son has power of attorney –whether litigation guardian to be appointed.

PRACTICE AND PROCEDURE – Whether non-lawyer to appear – where lawyer on the record – where non-lawyer a family friend – consideration of factors relating to appearance by a non-lawyer.

PRACTICE AND PROCEDURE – Venue – application for transfer to another registry – consideration of factors relevant to transfer.

PRACTICE AND PROCEDURE – Discovery – non-party discovery – failure to personally serve application on non-party – where no affidavit accompanying application.

Legislation:

Bankruptcy Act 1966 (Cth), ss.43, 44, 47, 52(1) & (2)

Federal Circuit Court (Bankruptcy) Rules2006 (Cth), rr.4.02, 4.04, 4.05, 4.06

Federal Circuit Court of Australia Act 1999 (Cth), ss.44, 66, 67, 68, 69
Federal Circuit Court Rules 2001 (Cth), rr.1.05(2), 8.01, 11.08, 11.15, 14.02
Federal Court Rules 2011 (Cth), r.20.23
Guardianship and Administration Act 1990 (WA), s.107
Judiciary Act 1903 (Cth), ss.55B(3), 55C, 78
Property Agents and Motor Dealers Act 2000 (Qld)

Australian Competition and Consumer Commission v Internic Technology Pty Ltd & Anor (1998) 42 IPR 225
Australian Steel Co (Operations) Pty Ltd v Steel Foundations Ltd & Anor (2003) 58 IPR 69; [2003] FCA 374
Clyne v Deputy Commissioner of Taxation (1985) 5 FCR 1
Culleton v Macquarie Leasing [2015] FCA 188
Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230
Deputy Commissioner of Taxation v Debaugy (2012) 263 FLR 193; [2012] FMCA 451
Goodall v Nationwide News Pty Ltd [2007] FMCA 218
No
Groundwater v Territory Insurance Office (2004) 183 FLR 437; [2004] FMCA 381
Macquarie Leasing Pty Limited v Culleton [2014] FCCA 1714
McIlwain v Ramsey Food Packaging Pty Ltd & Ors (2005) 221 ALR 785; [2005] FCA 1233
Melaleuca of Australia and New Zealand Pty Ltd v Duck [2005] FCA 1481
National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1988) 19 FCR 155
Omiros Pty Ltd v PM Developments Pty Ltd & Ors (No. 2) [2005] FMCA 234
Picos v HeathEngine Pty Ltd & Anor [2014] FCCA 640
PM Developments Pty Ltd v Omiros Pty Ltd [2005] FCA 1090
Reynolds v Minister for Health & Anor (2010) 247 FLR 425; [2010] FMCA 843
Re Sanders (2003) 1 ABC(NS) 408; [2003] FCA 1079
Sanders v Knudsen & Yates trading as the Hargreaves Practice [2004] FCAFC 305
Sherwood Overseas Co Pty Ltd v Jaymac International Pty Ltd [2008] FMCA 495
The Owners of Strata Plan 58041 v Temelkovski [2014] FCCA 2962
Verge & Anor v Devere Holdings Pty Ltd & Ors (No. 3) [2008] FMCA 1220
WG & B Manufacturing Pty Ltd v Telsa Farad Pty Ltd [1999] FCA 859
WH Books Ltd & Ors v Miller & Anor (1998) 41 IPR 364
Applicant: MACQUARIE LEASING PTY LTD
Respondent: RONALD NORMAN CULLETON
File Number: SYG 3244 of 2013
Judgment…

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AGLC
Macquarie Leasing Pty Ltd v Culleton [2015] FCCA 524
Case
[2015] FCCA 524
Decision Date

CaseChat Overview and Summary

Macquarie Leasing Pty Ltd petitioned for the sequestration of Mr Culleton's estate. The dispute concerned whether the requirements for issuing a sequestration order were met, including questions about Mr Culleton's son's purported power of attorney and the potential appointment of a litigation guardian. The matter was heard by Judge Antoni Lucev in the Federal Court of Australia.

The court was required to determine several procedural and substantive issues. These included whether a non-lawyer, a family friend, could appear on behalf of Mr Culleton when a lawyer was already on the record, and whether the proceedings should be transferred to another registry. Additionally, the court considered an application for non-party discovery, specifically addressing the failure to personally serve the application on the non-party and the absence of an accompanying affidavit.

In relation to the appearance by a non-lawyer, the court considered the specific circumstances and the existing legal representation. The application for transfer of venue was assessed based on relevant factors, and the application for non-party discovery was dismissed due to the procedural defects identified, namely the lack of personal service on the non-party and the absence of a supporting affidavit. The court ultimately found that the requirements for issuing a sequestration order had not been sufficiently made out.

Orders

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Background

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