Moseley v Better Look Homes Pty Ltd

[2017] FCCA 894

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOSELEY v BETTER LOOK HOMES PTY LTD [2017] FCCA 894

Catchwords:
BANKRUPTCY – Bankruptcy Act 1966 (Cth) – application brought by applicant in this Court lacks utility – no meaningful relief claimed in application against respondent – application in a case brought by respondent seeking summary dismissal – order for summary dismissal ought to be made – application dismissed with costs.

Legislation:

Bankruptcy Act 1966 (Cth), ss.178, 179

Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Circuit Court Rules 2001 (Cth)

Applicant: PETER EDWARD MOSELEY

Respondent: BETTER LOOK HOMES PTY LTD

File Number: SYG 704 of 2005

Judgment of: Judge Dowdy

Hearing date: 28 April 2017

Delivered at: Sydney

Delivered on: 28 April 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent: Mr J Mack of Counsel

Solicitors for the Respondent: Walsh & Blair Lawyers

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The application filed in this Court on 8 September 2016 is dismissed.

2. The applicant, Peter Edward Moseley, is to pay the respondent’s costs of the proceeding, including the Application in a Case filed on 11 April 2017, as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 704 of 2005

PETER EDWARD MOSELEY

Applicant

And

BETTER LOOK HOMES PTY LTD

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. By application filed in this Court on 8 September 2016 the applicant, Mr Peter Edward Moseley, invoked the jurisdiction of this Court presumably as a court of bankruptcy.  The orders sought in his application were very unconventional.  They were not, in fact, couched in terms of orders at all, but referred to a “Notice of Grounds of Defence filed in number 49 of 2003”, which from other documentation that I have seen, is presumably a reference to a proceeding in the New South Wales Local Court at Wagga Wagga.  He then makes an allegation that he was entitled to a fair trial and “did not receive notice.”

2. The respondent named in the application is Better Look Homes Pty Ltd. That company as petitioning creditor had obtained a sequestration order against Mr Moseley on 22 April 2005 from Registrar Hedge in the Federal Magistrates Court of Australia.  That sequestration order was made on a Creditors Petition which relied in part on an affidavit of service of a Bankruptcy Notice caused to be issued by Better Look Homes Pty Ltd which was served on Mr Moseley, according to the affidavit of service of Mr Michael Laurent, on 19 February 2005 in the afternoon at 31 Wilga Road, Hanwood via Griffith in the State of New South Wales.

3. Various procedural orders have been made in this proceeding to date, but relevantly on 11 April 2017 the respondent filed an Application in a Case seeking that the application brought by Mr Moseley be struck out or dismissed, relying on an affidavit of Mr Matthew Ryan Beckmans sworn on 9 December 2016.  The hearing of the Application in a Case has just concluded and it is with respect to that Application in a Case that I am now delivering judgment.  Mr Moseley reads a body of affidavit evidence to resist the Application in a Case for dismissal of his own application.  That affidavit evidence indicates that he is unhappy with the way he has been treated, in particular by the New South Wales Local Court system, and his own lawyers retained in relation to proceedings in the Local Court, and in particular in relation to the claim by the respondent builder, Better Look Homes Pty Ltd, that was brought against him in Wagga Wagga Local Court.  He puts into evidence a body of complaints that he has made to the New South Wales Government, to ICAC and to members of the NSW Parliament. 

4. Nevertheless, the short point is this: Mr Moseley’s bankruptcy commenced upon the making of the sequestration order on 22 April 2005 and it is now concluded.  Mr Max Donnelly was appointed his trustee and he has administered Mr Moseley’s sequestered estate and indeed has obtained funds representing Mr Moseley’s half share of his mother’s deceased estate.  And he has distributed the funds received from the mother’s deceased estate to the various creditors of Mr Moseley in the bankruptcy, and Mr Moseley has been discharged from his bankruptcy as and from 19 October 2016 by virtue of an automatic discharge.  The reason for the delay in the discharge, according to Mr Donnelly as trustee, was that Mr Moseley did not file the Statement of Affairs required of him under the Bankruptcy Act 1966 (Cth) until 18 October 2013.

5. So it is in these circumstances that Mr Mack of Counsel, who appears for Better Look Homes Pty Ltd, says that the present proceeding and application brought by Mr Moseley lacks any sort of utility.  Mr Moseley has been discharged from bankruptcy.  His assets have been distributed.  He makes no complaint against Mr Donnelly as his trustee or former trustee.  He makes no complaint as such against Better Look Homes Pty Ltd.  In his oral address to the Court he has made reasonably clear that his real complaint is against his former lawyers and the New South Wales court system which he says has for many years denied him access to court files or other files which he believed were necessary to enable him to ventilate any claims or complaints that he might have. 

6. However, notwithstanding my sympathy for Mr Moseley’s position as a disability pensioner and a man who obviously feels deeply upset and concerned at the way he has been treated, at the end of the day I cannot see that this Court could grant him any relief.  In his present application he does not, in effect, seek any specific relief and in particular he does not seek any relief against Better Look Homes Pty Ltd. Further there are no provisions of the Bankruptcy Act 1966 (Cth), including sections 178 and 179, which seem apt for any of Mr Moseley’s purposes because he does not make any complaint against Mr Donnelly with respect to the administration of his estate.

7. So I cannot see any relief that Mr Moseley could obtain against Better Look Homes Pty Ltd in this proceeding and therefore it seems to me that his application lacks any utility. In those circumstances, notwithstanding the high threshold which must be attained by a respondent seeking summary dismissal and strike out of an applicant’s claim in this Court,  I am satisfied that Mr Moseley has no reasonable prospects of successfully prosecuting the present proceeding against the respondent and that it is appropriate, notwithstanding the high threshold that Better Look Homes Pty Ltd has to attain in terms of obtaining an order for summary dismissal, that Mr Moseley’s application be summarily dismissed. 

8. I consider that Better Look Homes Pty Ltd has attained that threshold and that it is appropriate that this Court, pursuant to section 17A(2)(b) of the Federal Circuit Court of Australia Act 1999 (Cth) and rule 13.10 of the Federal Circuit Court Rules 2001 (Cth), dismiss the proceeding generally, on the basis that the Court is satisfied that the application has no reasonable prospects for success and that the proceeding is frivolous and vexatious.

9. Further, costs must in my view follow the event.

10. So the orders of the Court are as follows:-

    a)The application filed in this Court on 8 September 2016 is dismissed; and

    b)The applicant, Peter Edward Moseley, is to pay the respondent’s costs of the proceeding, including the Application in a Case filed on 11 April 2017, as agreed or assessed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 5 May 2017