Meinhardt v Meinhardt & Ors (No2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MEINHARDT v MEINHARDT & ORS (No2) [2006] FMCA 1028

PRACTICE AND PROCEDURE – Bankruptcy – Transfer to Federal Court – where consideration of decision of single justice of Federal Court submitted to be ‘plainly wrong’ – interests of administration of justice – resources – judgment writing time.

Bankruptcy Act 1966, s.244(13)

Feliciano Gonzalez v Maria De La Luz Marmentini, Executrix of the Estate of the Late Ida Garcia Raber (unreported 7 July 1998)

Applicant: MEINHARDT (HONG KONG) LTD

First Respondent: WILLIAM LINDSAY MEINHARDT (DECEASED)

Second Respondent: WILLIAM EDWARD MEINHARDT

Third Respondent: VICTORIA BARBARA TREYVAUD

File number: MLG 566 of 2006

Judgment of: McInnis FM

Hearing date: 19 July 2006

Delivered at: Melbourne

Delivered on: 19 July 2006

REPRESENTATION

Counsel for the Applicant: Mr M.L. Sifris SC, with Mr P. Fary

Solicitors for the Applicant: Maddocks

Counsel for the First Respondent: Mr G.T. Bigmore QC, with Mr K.J.A. Lyons

Solicitors for the First Respondent: Chambers & Co

Counsel for the Third Respondent: Mr A. Hanak

Solicitors for the Third Respondent: Foster Harris

ORDERS

1. The proceedings be transferred to the Federal Court of Australia pursuant to s.39(1) of the Federal Magistrates Act 1999.

2. Costs reserved.

IT IS NOTED:-

To the extent that it is possible the application be dealt with expeditiously by the Federal Court noting that the Supreme Court has listed a related matter before Justice Gillard for hearing on 14 September 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 566 of 2006

MEINHARDT (HONG KONG) LTD

Applicant

And

WILLIAM LINDSAY MEINHARDT (DECEASED)

First Respondent

WILLIAM EDWARD MEINHARDT

Second Respondent

VICTORIA BARBARA TREYVAUD

Third Respondent

REASONS FOR JUDGMENT

1. In this matter, the court made orders on 21 June 2006 by consent which effectively provided for a further directions hearing this day, the purpose of which was stated to be giving further directions generally in the proceeding and, if required, determining whether there is a preliminary issue to be decided, namely, whether the Applicant requires leave to bring this proceeding under s.244(13) of the Bankruptcy Act 1966 (the Bankruptcy Act). Further, if there is found to be a preliminary issue, the hearing and determination of that said preliminary issue.

2. Counsel for the petitioning creditor has provided the court with minutes of proposed orders which relevantly include a proposed order that the creditors' petition and the applicant's application for leave, if required, pursuant to s.244(13) of the Bankruptcy Act be fixed for hearing.

3. It has been indicated to the parties that the court is prepared to adjust its timetable to accommodate the further hearing as proposed by the applicant creditor on 7 and 8 August 2006.

4. During the course of submissions, the court was urged to hear and determine whether indeed there is a preliminary issue to be determined, namely, whether the Applicant creditor does in fact require the leave of the court to proceed pursuant to s.244(13) of the Bankruptcy Act.

5. It has become clear during the course of submissions that in considering…