Owens v Lofthouse

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OWENS v LOFTHOUSE [2007] FMCA 238

BANKRUPTCY – Interim Injunction against Trustee – attempt to delay taxation of Trustee’s costs – whether power of Court to grant injunction – Injunction power pursuant to s.30 of the Bankruptcy Act 1966 – whether necessary for the purpose of giving effect to (the Bankruptcy Act) – alternative review procedure of taxation pursuant to s.167(8) of the Bankruptcy Act – whether Administrative Decisions (Judicial Review) Act applies – application dismissed.

Bankruptcy Act 1966, ss.30, 167
Administrative Decision (Judicial Review) Act 1977

Hepburn; Ex parte Deputy Commissioner of Taxation (Unreported FCA  Hill J, 10 July 1989)

Applicant Debtor: SUE OWENS

Respondent Trustee: DAVID LOFTHOUSE

File number: MLG 1436 of 2004

Judgment of: McInnis FM

Hearing date: 8 February 2007

Delivered at: Melbourne

Delivered on: 8 February 2007

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr M O'Brien

Solicitors for the Respondent: Aitken Walker & Strachan

ORDERS

1. The Interim Application filed 23 October 2006 be dismissed.

2. The Applicant Debtor shall pay the Respondent Trustee's costs in relation to the Interim Application to be taxed in default of agreement pursuant to the Federal Court Rules. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1436 of 2004

SUE OWENS

Applicant Debtor

And

DAVID LOFTHOUSE

Respondent Trustee

REASONS FOR JUDGMENT

1. The application before this court is an interim application filed on 23 October 2006 by Ms Owens (the Debtor) against David Lofthouse, the trustee in bankruptcy (the Trustee).  The interim application seeks interim orders as follows:

   “1.The taxation of costs of the trustee be adjourned to a date after the determination of the applications currently before the court.

   2.The trustee provide an affidavit of documents and inspection of all records in his possession.”

2. The Debtor relies upon affidavits affirmed by her on 23 October 2006 and on 4 February 2007.  The Trustee essentially seeks to rely upon an affidavit of Richard John Cauchi who is duly authorised by the respondent to make the affidavit.  Mr Cauchi's affidavit sworn 7 February 2007 sets out in brief form the relevant chronology, to which I shall refer presently.

3. There are a number of preliminary issues however that arise for the court in dealing with this application. The first and most obvious is the basis upon which the interim order is sought. The Applicant has indicated that she seeks to rely upon s.30 of the Bankruptcy Act 1966 (the Bankruptcy Act) and the powers of the court to grant injunctive relief. 

4. The orders sought which I have set out earlier in this judgment however do not make it clear that an injunction is actually sought against the Trustee; rather the order sought is that a taxation of the Trustee’s costs be adjourned.  To understand the nature of that application it is necessary to appreciate that at the request of the Debtor the Insolvency Trustee Service of Australia has had appointed a taxing officer, Ms Harris, to undertake a taxation of the costs of…