Naxos and Rice

[2012] FamCA 924

FAMILY COURT OF AUSTRALIA

NAXOS & RICE [2012] FamCA 924

FAMILY LAW – that the husband effect service upon his Trustee in Bankruptcy of certain documents.

APPLICANT: Mr Naxos

RESPONDENT: Ms Rice

FILE NUMBER: SYC 5740 of 2008

DATE DELIVERED: 8 November 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 19 July 2012
27 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr White

SOLICITOR FOR THE APPLICANT: Pearson Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Ruggero

SOLICITOR FOR THE RESPONDENT: Adrian Twigg & Co Solicitors

Orders

1. That, within 14 days of today’s date, the husband effect service upon his Trustee in Bankruptcy of the following documents:

   1.The husband’s Initiating Application filed on 21 September 2011.

   2.The husband’s affidavit sworn on 21 September 2011.

   3.The wife’s Response to Initiating Application filed on 7 February 2012.

   4.The wife’s affidavit sworn on 11 January 2012.

2. That the husband effect service upon his Trustee in Bankruptcy of the court’s reasons and orders dated 8 November 2012.

3. That the husband cause to be filed affidavit evidence of service upon his Trustee in Bankruptcy in accordance with these orders.

4. That the proceedings be listed before the docket Registrar at 11:30am on 10 December 2012 for mention and further directions.

5. That the parties and their legal representatives appear before the Registrar at 11:30am on 10 December 2012.

6. That the husband’s Trustee in Bankruptcy and his legal representative are requested to attend before the Registrar at 11:30am on 10 December 2012 for the purposes of indicating his future intentions with regard to these proceedings and his submission as to the husband’s standing to commence proceedings pursuant to section 79A of the Family Law Act 1975 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Naxos & Rice has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5740 of 2008

Mr Naxos

Applicant

And

Ms Rice

Respondent

REASONS FOR JUDGMENT

the proceedings  

1. On 21 September 2011 the husband, Mr Naxos, filed an application pursuant to section 79A of the Family Law Act to set aside consent orders for property settlement made on 13 October 2009. He sought that the following orders be made “in substitution thereof”: 

   2. Pursuant to s.79A of the Family Law Act, the Order be and hereby is set aside and in substitution thereof:

   2.1to the Applicant’s Trustee in Bankruptcy the amount necessary to discharge the Applicant from bankruptcy; and

   2.2$363,000 to the Applicant.

2. The husband was an undischarged bankrupt at the time of the filing of this application.  He became bankrupt on 24 November 2009 and Mr B is his Trustee in Bankruptcy.  The husband remains an undischarged bankrupt.

3. An issue arose as to the husband’s standing to commence proceedings pursuant to s.79A at a time when he was an undischarged bankrupt. I heard submissions on this issue on 27 July 2012 and reserved judgment.

4. In the course of preparation of my judgment I became concerned as to whether the husband’s Trustee in Bankruptcy had been given adequate notice of these proceedings.  I was told by the husband’s counsel that Mr B had been advised of the listing on 27 July 2012 by way of a letter from his instructing solicitor to a lawyer who apparently had instructions to act on his behalf.  I set out below the contents of this letter (exhibit 1) in full.

   Our Ref:  …

   23 July 2012

   By Email:  …

   Stephen Mullette

   Matthews Folbigg

   [E Street]

   [Suburb F]

   Dear Mr Mullette

   [Mr Naxos & Ms Rice]

   FAMILY COURT PROCEEDINGS NO. SYC 5740/2008

   We refer to your email dated 22 September 2011 and note you have instructions to accept service on behalf of [Mr B].

   On 19 July 2012, the above matter was listed for first day before a judge, before Justice Stevenson of the Family Court of Australia at Sydney.  Her Honour has adjourned the matter to 11 am on 27 July 2012 and directed us to notify [Mr B] about that return date.

   In the event you no longer have instructions to accept service on behalf of [Mr B] please confirm that.  Out of abundant caution only, we have copied [Mr B] on this communication.

   Yours sincerely

   David Barry, Partner

   Accredited Specialist Family Law

   Direct Line:   …

   Direct Email: …

   Cc.  [Mr B]:  …

   On the face of this letter, it appears that a copy was emailed to Mr B. 

5. There was no appearance of or on behalf of the Trustee on 27 July 2012.  I cannot be sure that Mr B actually received this letter or that he appreciated the purpose of the listing on 27 July 2012.  It seems to me that I need to be satisfied that the Trustee is fully aware of the nature of the husband’s application and that he appreciates the potential consequences for his administration of the bankrupt estate and ramifications for the creditors.

6. I have thus determined that the husband be ordered to effect service of his application and affidavit upon the Trustee.  I will also order that the husband service on the Trustee copies of the wife’s response and affidavit.  The proceedings will then be listed before the docket Registrar at 11:30am on 10 December 2012 for mention and further directions. 

7. I will order that both parties and their legal representatives attend before the Registrar on that date.  I request and would be greatly assisted by the attendance of the Trustee and his legal representatives on the same date.  It may be that the court will join the Trustee as a party to the proceedings of its own motion but, before that step is taken, Mr B will be afforded this opportunity to offer his assistance on a voluntary basis. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 8 November 2012.

Associate:

Date:              8 November 2012