Passmore v Underdown (Deceased)

FEDERAL COURT OF AUSTRALIA

Passmore v Underdown (Deceased) [2010] FCA 70

Citation:		Passmore v Underdown (Deceased) [2010] FCA 70
Parties:		VINCENSA PASSMORE v SAMANTHA UNDERDOWN (DECEASED)
File number:		WAD 214 of 2009
Judge:		SIOPIS J
Date of judgment:		13 January 2010
Catchwords:		BANKRUPTCY – application for administration of a deceased estate pending in the Supreme Court of Western Australia – whether leave should be given to present a creditor’s petition for administration of a deceased estate under s 244(13) of the Bankruptcy Act 1966 (Cth).
Legislation:		Bankruptcy Act 1966 (Cth) ss 244 (1), 244(6), 244(13)
Cases cited:		Feliciano Gonzales v Maria De Luz Marmentini, Executrix of the Estate of the Late Ida Garcia Raber [1998] FCA 911
Date of hearing:	13 January 2010
Place:	Perth
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	25
Counsel for the Applicant:	Ms K Levy
Solicitor for the Applicant:	Kott Gunning
Counsel for the Respondent:	No appearance for the respondent.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 214 of 2009

BETWEEN: VINCENSA PASSMORE
Applicant

AND: SAMANTHA UNDERDOWN (DECEASED)
Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	13 JANUARY 2010
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The applicant be granted leave from the Court to present a Form 14 Creditor’s Petition for Administration of the Deceased Person’s Estate (Petition) to the Court under s 244(1)(a) of the Bankruptcy Act 1966 (Cth) (the Act), on such terms as the Court thinks fit, pursuant to s 244(13) of the Act.

2.A sealed copy of the Petition shall be served, pursuant to s 244(9) of the Act on Mr Arturo Fazio.

3.There be liberty to apply.

4.The costs of today be reserved.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 214 of 2009

BETWEEN: VINCENSA PASSMORE
Applicant

AND: SAMANTHA UNDERDOWN (DECEASED)
Respondent

JUDGE:	SIOPIS J
DATE:	13 JANUARY 2010
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application which is made under s 244(13) of the Bankruptcy Act 1966 (Cth) (the Act). That section provides that:

   Where proceedings have been commenced in a court for the administration of a deceased person’s estate under a law of a State or Territory, a petition for an order under the section in relation to the estate shall not be presented by a creditor except by leave of the Court and on such terms and conditions (if any) as the Court thinks fit.

2. The applicant’s affidavit evidence discloses that this application arises in the following circumstances.

3. Ms Underdown, the deceased, brought a claim against the applicant, Ms Passmore, in the Perth Magistrates Court for damages in relation to a property transaction.  On 15 January 2007, the Magistrate dismissed Ms Underdown’s claim.

4. The Magistrate’s orders gave Ms Passmore liberty to apply for a costs order in…