McNamara v San (No. 2)

[2010] FCA 116

FEDERAL COURT OF AUSTRALIA

McNamara v San (No. 2) [2010] FCA 116

Citation:		McNamara v San (No. 2) [2010] FCA 116
Parties:		PAUL ANTHONY McNAMARA v BAO SAN, JULIE SAN, IVAN SAN, OFFICIAL TRUSTEE IN BANKRUPTCY and SCHON GREGORY CONDON
File number:		NSD 615 of 2009
Judge:		GRAHAM J
Date of judgment:		8 February 2010
Date of hearing:	8 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	9
Counsel for the Applicant:	F G Kalyk
Counsel for the Third Respondent:	E W Young
Solicitor for the Third Respondent:	Parry Carroll
Solicitor for the Fourth Respondent:	M Freidman of Harris Freidman Hyde Page
Counsel for the Fifth Respondent:	R D Marshall from 2:15pm to 2:50pm on 8 February 2010
Solicitor for the Fifth Respondent:	M K L Hayter of Gillis Delaney

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 615 of 2009

BETWEEN:

PAUL ANTHONY McNAMARA
Applicant

AND:

BAO SAN
First Respondent

JULIE SAN
Second Respondent

IVAN SAN
Third Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY
Fourth Respondent

SCHON GREGORY CONDON
Fifth Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	8 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT GRANTS:

1.Leave to the applicant to further amend the Further Amended Application filed 3 November 2009 by deleting paragraph A3 and substituting as A3 “A declaration that the transfer of the family home of the first and second respondents to the third respondent is void against the fourth and fifth respondents.”

2.Leave to the applicant to amend paragraph 2 of the preamble to the Further Amended Application filed 3 November 2009 by deleting that paragraph and substituting: “2. A declaration that the transfer of the family home property is void under section 120 and/or section 121 of the Bankruptcy Act 1966 (Cth).”

AND THE COURT ORDERS THAT:

3.The costs of the third, fourth and fifth respondents that may prove to be thrown away by the further amendments to the Further Amended Application be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 615 of 2009

BETWEEN:

PAUL ANTHONY McNAMARA
Applicant

AND:

BAO SAN
First Respondent

JULIE SAN
Second Respondent

IVAN SAN
Third Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY
Fourth Respondent

SCHON GREGORY CONDON
Fifth Respondent

JUDGE:	GRAHAM J
DATE:	8 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These proceedings were commenced by an Application filed 25 June 2009. The application was unusual in that it was brought by a creditor to challenge the validity of a transfer of a family home forming part of the bankrupt estate of the first and/or second respondent pursuant to ss 120 and 121 of the Bankruptcy Act 1966 (Cth). The Application was succeeded by an Amended Application filed 18 August 2009 and a Further Amended Application filed 3 November 2009.

2. On 25 November 2009 a Notice of Motion was filed by the third, fourth and fifth respondents who are separately represented, seeking summary dismissal of the Amended Application  as it then was and, in the alternative, relief under Order 11 rule 16 of the Federal Court Rules striking out the Amended Statement of Claim which had been filed on 18 August 2009.

3. At the commencement of the hearing of the proceedings for summary dismissal under s 31A of the Federal Court of Australia Act 1976 (Cth) a question arose as to what relief was in fact sought by the applicant under the Further Amended Application, there being some apparent conflict between the identification of the Court’s jurisdiction, covered by the preamble to the form which is preceded by certain words to which reference will shortly be made and the claims made in the Further Amended Application.

4. The preamble to the form states:

   ‘(State briefly the nature of the subject of the application … and the legislative basis of the court’s jurisdiction to hear it and grant the relief sought.  The required statement is not taken to be part of the pleading.)’

   The form then provides for five separate sections to be completed being:

   ‘A.      DETAILS OF CLAIM;

   B.       CLAIM FOR INTERLOCUTORY RELIEF;

   C.       NOTICE TO RESPONDENT;

   D.       ABRIDGEMENT OF SERVICE; AND

   E.       FILING AND SERVICE.’

   Section A of the form is expressed in terms as follows:

   ‘On the grounds stated in the accompanying affidavit or statement of claim (or such other accompanying document as may be prescribed by the Rules) the applicant claims:

   1.        (Specify in numbered paragraphs all final relief sought.)

   2.        …’

5. Counsel for the applicant has informed the Court that at a final hearing the relief that would be sought is that contained in paragraphs 3, 4, 5, 6 and 8 of the section of the Further Amended Application headed:

   ‘A.      DETAILS OF CLAIM’

   He has also indicated that interlocutory relief is sought as recorded in the section headed ‘B.  CLAIM FOR INTERLOCUTORY RELIEF’ in accordance with paragraph 1 which relevantly provides:

   ‘The Applicant claims by way of interlocutory relief:

   1.         Leave to continue Supreme Court proceedings number 4784 of 2007.’

6. Counsel for the applicant indicates that the interlocutory relief sought is sought under s 58(3)(b) of the Bankruptcy Act 1966 (Cth). When identifying the relief that will be sought at a final hearing counsel for the applicant indicated that prayer for relief 3 would be subject to further amendment. Counsel and solicitors for the third, fourth and fifth respondents have protested that if a further amendment to the Further Amended Application is to be sought it should be done now. It may be that the amendment which is sought is, at the end of the day, stylistic rather than substantive. Provided that the costs that may prove to have been thrown away are reserved, there is no objection to the amendment that is sought.

7. Not only is an amendment sought to the claim, an amendment is also sought to the preamble relevant to the Court’s jurisdiction to deal with the matter in paragraph 2 thereof. 

8. I grant leave to the applicant to further amend the Further Amended Application filed 3 November 2009 by deleting paragraph A3 and substituting as A3:

   ‘3.A declaration that the transfer of the family home of the first and second respondents to the third respondent is void against the fourth and fifth respondents.’

9. I further grant leave to the applicant to amend paragraph 2 of the preamble to the Further Amended Application filed 3 November 2009 by deleting that paragraph and substituting:

   ‘2.A declaration that the transfer of the family home property is void under section 120 and/or section 121 of the Bankruptcy Act 1966 (Cth).’

   I grant leave to make those amendments and I reserve the costs of the third, fourth and fifth respondent that may prove to be thrown away by the further amendment.

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

Associate:

Dated:        22 February 2010