NICOLS v GARDNER

[2005] FMCA 122

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NICOLS v GARDNER & ANOR [2005] FMCA 122

BANKRUPTCY – Interlocutory hearing – applicant seeks to amend the original application in two ways: by adding additional parties and by seeking further orders.

Bankruptcy Act 1966, ss.120; 121; 122
Federal Magistrate Court Rules 2001, R. 703; 1102; 1102(2); 13.10

Rogers v The Commissioner of Taxation (1998) FCA 1296
Darcy v Medtel Pty Limited Number 3 (2004) FCA 807
Weldon v Neal (1887) 19 QBD 394
McGee v Yeomans (1977) 1 NSWLR 273
Australian Building Industries Pty Ltd v Stramit Corporation Limited (1977) FCA 1318
Linden v The Commonwealth of Australia (No.2) 136 ALR 251

Applicant: STEVE NICOLS

First Respondent: CHARLES ANTHONY LESLIE GARDNER

Second Respondent: SHAREN GARDNER

File No: SYG 276 of 2004

Delivered on: 25 January 2005

Delivered at: Sydney

Hearing date: 25 January 2005

Judgment of: Scarlett FM

REPRESENTATION

Solicitors for the Applicant: Koffels Solicitors & Barristers

Counsel for the Respondent: Ms Glover

Solicitors for the Respondent: Rod J Barnett & Associates

ORDERS

1. Leave is granted to the applicant to file an amended application in the form annexed to the application filed on 18 January 2005 and marked with the letter B.

2. That the amended application have effect from the date of commencement of these proceedings.

3. The Respondent is to file and serve a response to the amended application by 4.00pm on 15 February 2005.

4. The Respondent’s are to file and serve further affidavit material stating the facts upon which they seek to rely by 4.00pm 29 April 2005.

5. The application is adjourned to Tuesday 3 May 2005 for further directions at 10.15am.

6. The applicant is to pay the Respondent’s costs up to today and for part of today’s proceedings fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2276 of 2004

STEVE NICOLS

Applicant

And

CHARLES ANTHONY LESLIE GARDNER

First Respondent

And

SHAREN GARDNER

Second Respondent

REASONS FOR JUDGMENT

Application

1. The matters before the court today consist of two interlocutory applications. They concern an application brought under the Bankruptcy Act. The applicant seeks to amend the original application in two ways: first, by adding additional parties; second, by seeking further orders.

2. The respondents oppose these applications. Indeed, the respondents, not only by their response but also by a separate interlocutory application, seek summary dismissal of the application, whether amended or not, under Part 13(10) of the Federal Magistrates Court Rules 2001 on the grounds that no reasonable cause of action is disclosed.

3. The substantive proceedings before the court were commenced by means of an application and an affidavit filed on 20 July 2004. The application was brought by the applicant as trustee of the bankrupt estates of the two respondents under sections 120, 121 and 122 of the Bankruptcy Act. The orders that were originally sought were, in very general terms, orders that transfers of assets and property made by one or other or both of the respondents were void pursuant to sections 120, 121 and…