Nicholls v Hertslet

[2016] FCA 655

FEDERAL COURT OF AUSTRALIA

Nicholls (Trustee) v Hertslet [2016] FCA 655

File number:

NSD 1657 of 2015

Judge:

BROMWICH J

Date of judgment:

3 June 2016

Catchwords:

PRACTICE AND PROCEDURE – Harman v Home Office implied undertaking not to use documents produced by process of a court for a purpose outside those proceedings – application for leave to use documents produced by a consent order in proceedings in the Supreme Court of New South Wales  – whether implied undertaking arises for Trustee in bankruptcy in relation to documents for the administration of an estate to which the bankrupt is a beneficiary – failure to seek leave before using documents – meaning of ‘special circumstances’ for the grant of leave

Legislation:

Bankruptcy Act 1966 (Cth), s 30

Federal Court Rules 2011, rr 1.33, 26.12(2)(c) and 40.04(a)

Cases cited:

Binetter v BCI Finances Pty Ltd (in liq) [2015] FCAFC 122; (2015) 235 FCR 410

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street [2008] HCA 36; (2008) 235 CLR 125

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217

Date of hearing:

27 April 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

National Practice Sub-Area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

78

Counsel for the Applicant:

Mr A Spencer

Solicitor for the Applicant:

McLean and Associates Solicitors

Counsel for the First Respondent:

The first respondent appeared in person by telephone

Counsel for the Second Respondent:

Ms E Glover

Solicitor for the Second Respondent:

Goldrick Farrell Mullan Solicitors

ORDERS

NSD 1657 of 2015

BETWEEN:

ALAN RICHARD NICHOLLS IN HIS CAPACITY AS THE TRUSTEE IN BANKRUPTCY OF THE BANKRUPT ESTATE OF JOHN CHARLES HERTSLET

Applicant

AND:

JOHN CHARLES HERTSLET

First Respondent

DOUGLAS JAMES HERTSLET

Second Respondent

JUDGE:	BROMWICH J
DATE OF ORDER:	3 JUNE 2016

THE COURT ORDERS THAT:

1.The second respondent pay the applicant’s costs of the interlocutory application as taxed or agreed.

2.Leave is granted to the applicant to discontinue the part of the application filed on 15 December 2015 brought against the second respondent.

3.The second respondent pay the applicant’s costs (including reserved costs) of the application filed on 15 December 2015 brought against the second respondent as taxed or agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1. The applicant is the trustee in bankruptcy of the bankrupt estate of John Charles Hertslet (the Trustee).  The first respondent is the bankrupt, John Charles Hertslet (John).  John has no active part to play in the interlocutory proceedings at this stage, although he will be indirectly affected by the outcome. 

2. The second respondent, Douglas James Hertslet (Douglas), is the brother of John and the executor of the estate of the late Marjorie Adline Matilda…