Newington, J.E.A. v Beneficial Finance Corporation Ltd

[1990] FCA 330

\

JUDGMENT NO. ...3.3?. Y...- & i ,,

IN THE FEDERAL COURT OF AUSTRALIA	)
1
NEW SOUTH WALES DISTRICT REGISTRY	) NO. G213 of 1990
)
GENERAL DIVISION	1

BETWEEN:  JEAN EDELWEISS ALAINE
NEWINGTON

First Applicant

OFFICIAL TRUSTEE IN

BANKRUPTCY

Second Applicant

GENIW PTY LIMITED

Third Applicant

JACQUES BONNET

Fourth Applicant

AND:  BENEFICIAL FINANCE
CORPORATION LIMITED

Davies J.

6 June 1990

Sydney

( "Beneficial Finance").

REASONS FOR JUDGMENT

EX TEMPORE

These proceedings were commenced by an application

which was filed on 27 Aprll 1990. The applicants were named as Jean Edelweiss Alaine Newington, the Official Receiver in

Bankruptcy, Genman Pty Limited and Jacques Bonnet.	The
respondent is Beneficial Flnance Corporation Ltd.

At the time the proceedlngs were commenced, the

first applicant, Jean Newlngton, was a bankrupt.

A motlon was flled on behalf of the respondent,

Beneficial Finance, on 18 May, seeking that the Court dismiss the proceedlngs.

On the return of that motlon on 24 Nay, the

Official Trustee In Bankruptcy appeared by the Australian Government Solicitor and also sought an order that the Court dismiss the proceedlngs. That motion was supported by an affidavit by Michael Slmon Studman, in which he deposed that the application had not been brought on the instructions or with the approval of the Offlcial Receiver.

The submission was made that the solicitor for the

applicants, Mrs Einfeld, had not been Instructed on behalf
of the second applicant, the Officlal Trustee In Bankruptcy,
that all rights that the first applicant, Jean Newington,

had in respect of the subject matter of the claim were

rights which were vested in the Offlcial Trustee and that

the application was therefore improperly made.

when this matter came before me on 24 May, the

question of the position of the Officlal Trustee was
discussed and an adlournment was granted so as to enable the
matter to be considered by all parties. The matter was then
listed for further hearing and it has come on thls mornlng.

On 24 Hay, it was foreshadowed by counsel

instructed by Mrs Einfeld that proceedlngs might be brought

under the Administrative Decisions (Judicial Review) Act

1 9 7 7 (Cth)("the ADJR Act") to review the decision by the

Official Trustee not to join in the application. However, no further appllcatlon has been lodged and no further affidavits have been filed. The only step that has been taken is that a notice of dlscontinuance was filed on Jean Newington's behalf on 3 1 May.

Counsel for the applicants submitted that nothing

should happen today and that the matter should be further
adlourned so that proceedings could be instituted under the
ADJR Act seeking an order that the Officlal Trustee, in

effect, remain in the proceedlngs.

It would be improper for me to adjourn the matter

further to enable any such application to be made. The Official Trustee appears here today through Mr Skinner,	instructed by the Australian Government Solicitor. It seems	to me I ought to act on what I am informed by Hr Skinner and
not by somebody who wishes to act on the Official Trustee's behalf.

The application for an adjournment of the

proceedlngs should therefore be refused.

On t h e evidence before me, the proceedings were

commenced wlthout instructions from the O f f l c i a l Trustee and

wlthout	t h e consent of	t he O f f l c l a l Trustee .	In those
circumstances,	the O f f i c i a l Trustee should be	removed	from
t h e proceedings and	I	order	t h a t the O f f l c i a l Trustee be

dismissed from the application.

That l eaves only Genman Pty Ltd and Jacques Bonnet

a s p a r t i e s . I t i s shown today t h a t they have no cause of

ac t ion . The proper s t e p t o take i s t o order t h a t t he

e x i s t i n g s ta tement of claim be s t ruck out and t h a t any statement of claim on t h e l r behalf be f i l e d and served

wlthin t h r e e weeks of t h i s day.

The O f f i c i a l Trustee and Beneficial Finance should

have cos t s .	Orders have been sought on an indemnity b a s i s
and, i n view of what has occurred, t h a t i s proper.	Those

orders w l l l be	a g a l n s t t h e f l r s t applicant,	Jean Newington.
I	c e r t i f y t h a t t h i s and	t h e 3

preceding pages a r e a t r u e copy of

t he Reasons f o r Judgment here in of

t he Honourable Nr	J u s t i c e Davies.
Associa te :
Date:	6 June 1990