Moore v Macks

[2006] FMCA 594

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOORE v MACKS [2006] FMCA 594

BANKRUPTCY – Application for inquiry into conduct of trustee pursuant to s.179 of Bankruptcy Act – threshold determination required before inquiry embarked upon.

Wilson v Mannahill Mining Co Pty Ltd [2004] FCA 912
Re Alafaci;  Registrar in Bankruptcy v Hardwick (1976) 9ALR 262
Re Gault;  Gault v Law (1982) 57 FLR 165
Registrar in Bankruptcy v Bradley (1983) 72 FLR 231

Wilson & Anor v The Commonwealth of Australia & Anor [1999] FCA 219

Applicant: DAVID GERALD MOORE

Respondent: PETER IVAN MACKS

File Number: ADG66 of 2005

Judgment of: Lindsay FM

Hearing date: 2 December 2005

Date of Last Submission: 2 December  2005

Delivered at: Adelaide

Delivered on: 27 April 2006

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr Madsen

Solicitors for the Respondent: Madsen Rowley

ORDERS

1. That the application filed on 16 March 2005 for orders pursuant to s.179(1)(a) of the Bankruptcy Act removing the respondent as trustee of the applicant’s bankrupt estate and for orders relating to the trustee’s conduct, other than his proposed abandonment of appeals instituted by the applicant in SAD175/04 and SAD176/04 in the Federal Court of Australia, be dismissed.

2. That further consideration of the application as it relates to orders sought arising out of the proposed abandonment of the said appeals be adjourned 9.30 am on Wednesday 17 May 2006.

3. That the interim application filed on 10 April 2006 do stand dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MOORE v MACKS

ADG66 of 2005

DAVID GERALD MOORE

Applicant

And

PETER IVAN MACKS

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 28 April 2005 in which Mr Moore seeks the removal of his trustee in bankruptcy pursuant to s.179(1)(a) of the Bankruptcy Act 1966 (Cth) (hereinafter “the Act”). The respondent has applied for a summary dismissal of the application and the following constitutes my reasons for judgment in relation to same.

2. The respondent is the trustee.

3. Mr Moore also seeks an order restraining Mr Macks from abandoning an appeal instituted by Mr Moore in matter SAD176 of 2004 filed in the Adelaide Registry of the Federal Court.

4. Mr Moore was made bankrupt by an order of Registrar Christie in this Court on 21 January 2005.  He applied for a review of that sequestration order and the proceedings were heard by me.  On 1 July 2005 I dismissed his application for a review of Registrar Christie’s sequestration order.  Mr Moore appealed my decision and on 10 February 2006 Mansfield J in the Federal Court dismissed his appeal.

5. Mr Moore has instituted an appeal against the decision of Lander J in the Federal Court in Wilson v Manna Hill Mining Co Pty Ltd [2004] FCA 912 and in relation to a related costs order (hereinafter “the appeals”). That decision was handed down on 14 July 2004.

6. On 21 March 2005 solicitors representing the respondents to that appeal gave notice to Mr Macks requiring him to make an election in relation to whether…