Nugawela v Dudley (Trustee) (No 3)

FEDERAL COURT OF AUSTRALIA

Nugawela v Dudley (Trustee) (No 3) [2023] FCA 674

File number:

WAD 528 of 2017

Judgment of:

COLVIN J

Date of judgment:

20 June 2023

Catchwords:

PRACTICE AND PROCEDURE - where matter stayed for five years due to the applicant's non-compliance with orders - where no explanation for the delay and non‑compliance given - matter dismissed

Cases cited:

Nugawela and Commissioner of Taxation [2021] AATA 1636

Nugawela v Commissioner of Taxation (No 2) [2019] FCA 512

Nugawela v Commissioner of Taxation (No 3) [2020] FCA 773

Nugawela v Commissioner of Taxation (No 4) [2020] FCA 1128

Nugawela v Commissioner of Taxation [2018] FCA 1458

Nugawela v Commissioner of Taxation [2019] FCAFC 206

Nugawela v Commissioner of Taxation [2022] FCA 1474

Nugawela v Commonwealth Bank of Australia [2018] FCA 960

Nugawela v Deputy Commissioner of Taxation [2018] FCA 1457

Nugawela, Bankrupt and Commissioner of Taxation [2018] AATA 979

Division:

General Division

Registry:

Western Australia

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

18

Date of hearing:

20 June 2023

Counsel for the Applicant:

The applicant appeared in person

Counsel for the Respondent:

Mr C Touyz

Solicitor for the Respondent:

HKT Legal

ORDERS

WAD 528 of 2017

BETWEEN:

PATRICK ALLAN NUGAWELA

Applicant

AND:

GREGORY BRUCE DUDLEY AS TRUSTEE FOR ESTATE OF PATRICK NUGAWELA NO.  WA267 OF 2017

Respondent

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

Interested Party

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	20 JUNE 2023

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant do pay the respondent's costs of the application, to be assessed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

COLVIN J:

1. In October 2017, Dr Patrick Nugawela commenced an application against his trustee in bankruptcy, complaining about certain conduct allegedly undertaken by the trustee in the administration of his estate.  The allegations made were to the effect that:

   (a)the trustee had failed to agree to assign rights of action to him to enable him to pursue actions against the Australian Tax Office said to be the major creditor of his estate;

   (b)the trustee had acted in the interests of the Australian Tax Office in the conduct of his estate, particularly in relation to actions concerning claims that might be pursued against the Australian Tax Office; and

   (c)the trustee had elected to abandon proceedings brought by Dr Nugawela against the Australian Tax Office when those proceedings should not have been abandoned.

2. The form of application also alleged that the trustee had not taken certain relevant considerations into account and had taken certain irrelevant considerations into account in relation to matters concerned with the possible pursuit by him personally of proceedings against the Australian Tax Office.  The considerations that were alleged to be relevant and not to have been taken into account by the trustee included a reference to the fact that the…