Malecki v Macko (No 2)

[2024] FCA 82

FEDERAL COURT OF AUSTRALIA

Malecki v Macko (No 2) [2024] FCA 82  

File number:

SAD 142 of 2021

Judgment of:

BESANKO J

Date of judgment:

15 February 2024

Catchwords:

PRACTICE AND PROCEDURE — application by the respondents for an order dismissing the proceeding under rr 5.23(1)(b), 5.22(c) and (d) of the Federal Court Rules 2011 (Cth) — where the first applicant failed to attend hearings and is in default — where the first applicant failed to prosecute the proceeding with due diligence — held an order for the dismissal of the proceeding should be made

Legislation:

Bankruptcy Act 1966 (Cth) s 116

Federal Court of Australia Act 1976 (Cth) s 31A

Federal Court Rules 2011 (Cth) rr 2.16, 5.22, 5.23, 8.01, 11.01, 11.09, 16.21

Cases cited:

Malecki v Macko [2022] FCA 766

Division:

General Division

Registry:

South Australia

National Practice Area:

Other Federal Jurisdiction

Number of paragraphs:

33

Date of last submissions:

25 September 2022

Date of hearing:

16 September 2022

Counsel for the Applicant:

The Applicant did not appear

Counsel for the Respondents:

Ms T Flaherty

Solicitor for the Respondents:

WRP Legal & Advisory

ORDERS

SAD 142 of 2021

BETWEEN:

ANDREW MALECKI

Applicant

AND:

CHRISTOPHER EDWARD MACKO

First Respondent

MACKO CORPORATION PTY LTD (ACN 163 659 925) IN ITS OWN RIGHT AND AS TRUSTEE FOR THE MACKO CORPORATION TRUST

Second Respondent

ORDER MADE BY:	BESANKO J
DATE OF ORDER:	15 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The proceeding dated 21 July 2021 be dismissed pursuant to rr 5.23(1)(b), 5.22(c) and (d) of the Federal Court Rules 2011 (Cth).

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

1. This is an application for an order dismissing a proceeding on the basis of a failure to attend a hearing and/or a failure to prosecute a proceeding with due diligence under rr 5.23(1)(b), 5.22(c) and (d) of the Federal Court Rules 2011 (Cth) (the Rules). Under those Rules, such an order may be made where a party is in default for one or other or both of the circumstances identified. For the reasons which follow, the proceeding should be dismissed.

2. Alternative orders were sought in the application: an order for summary judgment under s 31A of the Federal Court of Australia Act 1976 (Cth) or an order striking out the Statement of Claim under r 16.21(1) of the Rules. In view of the conclusion I have reached in relation to the first order sought, it is not necessary for me to address the application insofar as it seeks these alternative orders.

3. The applicants in the proceeding were Andrew Malecki and Better Lending Pty Ltd (Better Lending).  I say “were” because by order of the Supreme Court of South Australia made on 28 January 2022, Better Lending was wound up and Mr Peter Lanthois of Powell Duncan, an official liquidator, was appointed liquidator of Better Lending.  On 18 August 2022, Better Lending discontinued the proceeding on terms (by consent) that…