McNally v Fazio
[2015] FCCA 277
•10 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCNALLY v FAZIO | [2015] FCCA 277 |
| Catchwords: PRACTICE AND PROCEDURE – Application for adjournment of sequestration order application – recent appointment of Public Trustee to act as administrator for respondent – necessity to obtain valuation of real property – whether respondent has capacity – whether respondent had capacity at time of service of creditors petition – application in State tribunal by respondent for review of decision concerning capacity – adjournment granted. |
| Cann v Commonwealth Bank of Australia (No.3) [2011] FMCA 303 The Owners of Strata Plan 58041 vTemelkovski [2014] FCCA 2962 |
| Applicant: | BRIAN MCNALLY |
| Respondent: | ARTURO SALVATORE FAZIO |
| File Number: | PEG 104 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 10 February 2015 |
| Date of Last Submission: | 10 February 2015 |
| Delivered at: | Perth |
| Delivered on: | 10 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Lennon |
| Solicitors for the Applicant: | Park Linfoot Legal Solutions |
| Counsel for the Respondent: | Mr L Chiat |
| Solicitors for the Respondent: | Public Trustee |
ORDERS
The hearing of the matter be adjourned for mention to not before 4pm on 12 March 2015.
Costs of today reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 104 of 2014
| BRIAN MCNALLY |
Applicant
And
| ARTURO SALVATORE FAZIO |
Respondent
REASONS FOR JUDGMENT
(Edited extempore reasons)
In the Court’s view it is appropriate to adjourn today’s hearing. It is appropriate on a number of bases.
Firstly, of course, is the relatively recent appointment of the Public Trustee as the plenary administrator of Mr Fazio’s affairs, as a consequence of which the Trustee comes late to this litigation. That is not said in any critical sense. It is simply a matter of fact.
Secondly, it is the case, it would appear, that the Public Trustee’s role and appointment will remain uncertain, at least until a review of the order appointing the Public Trustee as plenary administrator (which was made on 12 December 2014 by the State Administrative Tribunal) is heard, which the Court is informed will be on 11 March 2015.
Thirdly, the Court considers it is appropriate in the circumstances that the Public Trustee be given the opportunity to have the property in which the Respondent resides valued with a view to determining a future course of conduct which might include the sale of the property (which is a property at 10 Hannah Street in Leeming in the State of Western Australia), and which the Court has been told is already the subject of an order for possession of the property by Westpac, to whom it would appear the respondent has a debt which exceeds $720,000. In those circumstances, the Court considers it appropriate that the Public Trustee have some time to get a valuation and determine whether or not the property is to be sold, and, if so, how.
Finally, the Court also considers it appropriate that the matter be adjourned to allow the parties to consider the judgment of this court in The Owners of Strata Plan 58041 vTemelkovski [2014] FCCA 2962, which again comes late in the piece, being delivered on 19 December 2014, which raises issues as to the service of a creditors petition on a person suffering from an incapacity. And that is a matter which the Court suspects both parties might need to give some further consideration to.
It is regrettable, that in the circumstances, a matter which has had a reasonably long history already before Registrars of this Court and in respect of which there appear to have been, a number of difficulties with respect to the issue of service on the respondent, has to be adjourned for the reasons that the Court has given. The matter of adjournment is, of course, a matter in the discretion of the Court: it is a wide discretion that the Court exercises in that regard: Cann v Commonwealth Bank of Australia (No.3) [2011] FMCA 303 at paras.9-11 per Lucev FM; Myers v Myers [1969] WAR 19 at 21 per Jackson J. In the circumstances of this case, and for the reasons the Court has given, the interests of justice require that an adjournment be ordered.
The matter is adjourned for mention to not before 4 pm on 12 March 2015 with the costs of today reserved.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 16 February 2015
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