Morton v TRKULJA and Anor (No.1)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MORTON v TRKULJA & ANOR (No.1) [2004] FMCA 186

PRACTICE AND PROCEDURE – BANKRUPTCY – Application to reopen case to call fresh evidence – applicant a trustee in bankruptcy – considerations relevant to application – whether respondents prejudiced – whether in the interests of justice to our case to be reopened.

Bankruptcy Act 1966, ss.77C, 130

Smith v New South Wales Bar Association (1992) 176 CLR 256
Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88
Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128
Urban Transport Authority v Nweiser (1992) 28 NSWLR 471

Applicant: ROBERT WILLIAM MORTON (AS TRUSTEE OF THE PROPERTY OF MICHAEL TRKULJA, A BANKRUPT)

First Respondent: MILKA TRKULJA

Second Respondent: MIRA TODORAN

File No: MZ 657 of 2002

Delivered on: 24 March 2004

Delivered at: Melbourne

Hearing date: 10 March 2004

Judgment of: Phipps FM

REPRESENTATION

Counsel for the Applicant: Mr Percy

Solicitors for the Applicant: John Curtain & Associates

Counsel for the Respondent’s: Mr Broadfoot

Solicitors for the Respondent’s: Allan McMonnies

ORDERS

1. That subject to any objections to admissibility the applicant have leave to reopen his case and adduce the evidence described in paragraphs 3-6 and 10-12 (including any similar affidavits by the second respondent to that described in these paragraphs) of his affidavit sworn 3 February 2004 and paragraphs 6-17 of his affidavit sworn 19th February 2004.

2. That the applicant have leave to recall each of the respondents for the purpose only of cross-examining them on the further evidence called pursuant to paragraph 1.

3. That costs be reserved.

4. That the Court certifies that it was reasonable to employ an advocate.

5. That the hearing be adjourned to a date to be fixed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 657 of 2002

ROBERT WILLIAM MORTON (AS TRUSTEE OF THE PROPERTY OF MICHAEL TRKULJA, A BANKRUPT)

Applicant

And

MILKA TRKULJA

First Respondent

And

MIRA TODORAN

Second Respondent

REASONS FOR JUDGMENT

1. The applicant has applied to reopen his case and call additional evidence. 

2. The applicant is the trustee in bankruptcy of Michael Trkulja.  The respondents are his mother and sister.  The applicant alleges that in 1986 the second respondent purchased a house in Spotswood, that the house was sold and the proceeds applied to the purchase of a property in the name of both respondents in West Melbourne.  The applicant alleges that the respondents hold the West Melbourne property as trustees for the bankrupt.

3. At the hearing the applicant relied on evidence of payments which he submitted were made by the bankrupt towards repayment of the loan given to the respondents by the Commonwealth bank. The Commonwealth bank holds a mortgage over the property.  The fresh evidence which the applicant wishes to lead is as follows:

   i)Two applications by the bankrupt to the ANZ bank, one for a credit card and the second, to increase the credit card limit, and the history of transactions on those credit cards. Both applications give the West Melbourne property as the bankrupt’s…