Pacelli and Hopkinson and Anor - [2010] FMCAfam 1248

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PACELLI & HOPKINSON & ANOR

[2010] FMCAfam 1248

FAMILY LAW – Locus standi of bankrupt party – non-vested assets pursuant to s.116(2) Bankruptcy Act – bankrupt person affected for purposes of s.79A(1) in respect of non-vested assets – reinstatement of bankrupt to proceedings.

Administration and Probate Act1958
Bankruptcy Act 1966
Family Law Act 1975
Superannuation Industry (Suspension) Act 1993

Audet v Audet; Official Trustee in Bankruptcy (Intervener) (1995) FLC 92-607;
Coffey v Bennett [1961] VR 264
Crackenback Investments Pty Ltd v Wywsik, unreported; Supreme Court of NSW No 1440 2/81 25 August 1983
Deputy Commissioner of Taxation v Swain (1988) 20 FCR 507
Lemnos v Lemnos [2007] FamCA 1058
O’Neill, In the marriage of O’Neill [1998] FLC 92-811

Halsburys Laws of Australia, Butterworths, 1998, vol 3(1)

Applicant:

MR PACELLI AS THE TRUSTEE FOR THE BANKRUPT ESTATE OF MR HOPKINSON

First Respondent:

MS HOPKINSON

Second Respondent:

MR HOPKINSON

File Number:

BRC4362 of 2007

Judgment of:

Burnett FM

Hearing date:

18 February 2010

Date of Last Submission:

9 November 2010

Delivered at:

Brisbane

Delivered on:

17 November 2010

REPRESENTATION

Counsel for the Applicant:

Ms Julian-Armitage

Solicitors for the Applicant:

Gregg Lawyers

Counsel for the First Respondent:

Mr Cameron

Solicitors for the First Respondent:

Nathan Lawyers

Counsel for the Second Respondent:

Mr G. Page SC

Solicitors for the Second Respondent:

ORDERS

Mr Hopkinson be reinstated as a party and be noted as first applicant in the proceeding.
Mr Pacelli as Trustee of the bankrupt estate of Mr Hopkinson be noted as second applicant in the proceeding.
Costs reserved.
Application be listed for mention at 9.30am on 24 November 2010.

IT IS NOTED that publication of this judgment under the pseudonym Pacelli & Hopkinson & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
ATBRISBANE

BRC 4362 of 2007

MR PACELLI AS TRUSTEE FOR THE BANKRUPT ESTATE OF MR HOPKINSON

Applicant

And

MS HOPKINSON

First Respondent

MR HOPKINSON

Second Respondent

REASONS FOR JUDGMENT

Background

These proceedings commenced in 2007 with the Mr Hopkinson as the applicant (the applicant) seeking orders for injunctions in respect of property and orders for spousal maintenance. Despite their vague expression in the prayer for relief in the initiating application, the proceedings subsequently metamorphosised into conventional proceedings for orders pursuant to s.79 of the Family Law Act (FLA).
On 11 September 2007 the applicant was subject to a sequestration order made under the Bankruptcy Act (BA). Mr Pacelli was appointed as his Trustee in bankruptcy (the Trustee). By orders made on

20 March 2008 pursuant to s.79(11) FLA the Trustee was joined as a party to the proceedings. In turn, he assumed the applicant’s conduct of the property proceedings and the applicant’s role was thereafter limited by operation of s.79(12) FLA.
In due course the respondent and the Trustee purported to resolve all matters between them and proposed a settlement of the s.79 FLA proceedings. Subsequently the Trustee and the respondent by their respective…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Pacelli and Hopkinson and Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FMCAfam 1248
Decision Date: 17 November 2010

CaseChat Overview and Summary

The case of Pacelli and Hopkinson and Anor involved a dispute before a federal court. The applicants, Mr Pacelli and Mr Hopkinson, sought reinstatement as parties in a proceeding, with Mr Pacelli also acting as the trustee of Mr Hopkinson's bankrupt estate. The legal issues before the court centred on the procedural matters of party reinstatement and the proper identification of parties in the proceeding. The court needed to determine whether the applicants were entitled to be reinstated as parties and how they should be designated in the proceeding.

The court considered the procedural history of the case and the rights of the applicants. It found that there was merit in reinstating Mr Hopkinson as a party and recognised the necessity of Mr Pacelli's role as the trustee of Mr Hopkinson's bankrupt estate. The court also noted that the proper identification of parties was crucial for the administration of justice and the integrity of the proceeding. As such, the court determined that Mr Hopkinson should be reinstated as the first applicant and Mr Pacelli should be noted as the second applicant in the proceeding, with his capacity as trustee explicitly stated.

The court's reasoning was grounded in the principles of procedural fairness and the necessity of accurate party identification. By reinstating Mr Hopkinson as a party, the court ensured that all relevant parties had the opportunity to participate in the proceeding. Additionally, by noting Mr Pacelli's dual role, the court maintained transparency and clarity in the case. The court's decision was aimed at rectifying procedural errors and ensuring that the proceeding could proceed fairly and effectively. The orders reflect the court's commitment to procedural integrity and the fair administration of justice.

Orders

Orders of the court

Mr Hopkinson be reinstated as a party and be noted as first applicant in the proceeding.

Mr Pacelli as Trustee of the bankrupt estate of Mr Hopkinson be noted as second applicant in the proceeding.

Costs reserved.

Application be listed for mention at 9.30am on 24 November 2010.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.