Phillips v Dixon

[2013] FCCA 1947

FEDERAL CIRCUIT COURT OF AUSTRALIA

PHILLIPS v DIXON [2013] FCCA 1947

Catchwords:
BANKRUPTCY – Application for review of decisions of Trustee – where applicant given leave to file application to effect that property, now sold, did not form part of her bankrupt estate – where no appearance – application dismissed.

Legislation:  

Bankruptcy Act 1966 (Cth), ss.104(1), 116, 168

Applicant: MARIANNE PHILLIPS

Respondent: STEPHEN DIXON AS TRUSTEE OF THE BANKRUPT ESTATE OF MARIANNE PHILLIPS

File Number: SYG 2081 of 2013

Judgment of: Judge Raphael

Hearing date: 18 November 2013

Date of Last Submission: 18 November 2013

Delivered at: Sydney

Delivered on: 18 November 2013

REPRESENTATION

For the Applicant: No appearance

Counsel for the Respondent: Mr B. Katekar

Solicitors for the Respondent: O’Neill Partners – Commercial Lawyers

ORDERS

1. Application be dismissed pursuant to Part 13 Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. Applicant to pay the Respondent’s costs assessed in the sum of $4,500.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2081 of 2013

MARIANNE PHILLIPS

Applicant

And

STEPHEN DIXON AS TRUSTEE OF THE BANKRUPT ESTATE OF MARIANNE PHILLIPS

Respondent

REASONS FOR JUDGMENT

1. In this matter, the applicant, who is a bankrupt, filed an application on 4 September 2013. The application came before the court on 23 September 2013 and on that day, by consent, the applicant was ordered to file an amended application by 27 September 2013 and the respondent was ordered to file affidavit evidence by 4 October 2013. The matter was listed for hearing on 14 October 2013. The applicant did file an amended application. She sought two orders, the first being a review of the decision of the trustee not to pursue or proceed with an application to set aside the judgment in proceedings number 2009 450627 in the Local Court of New South Wales, pursuant to s.178 of the Bankruptcy Act 1966 (Cth).[1] And the second was review of the decision of the trustee with respect of the proof of debt, lodged by Lion Finance Pty Ltd, pursuant to s.104(1) of the Act.

   [1] The “Act”.

2. On 14 October 2013 the matter came before a Registrar of the court again, the applicant appearing by telephone.  The matter was referred to me.  I heard Ms Phillips on the telephone and she told me that the application she was making was for part of a process by which she hoped to negate orders made in the Supreme Court of New South Wales for the sale of her property.  The hearing revealed a very sorry state of affairs.  Ms Phillips, who has been bankrupt once before, bought a car in January 2006 for $10,990.  In October 2007 the balance of the loan was about $8,500, and in September 2008 the vehicle was repossessed.  It was apparently sold for about $2,000, netting the finance company approximately $1,500. 

3. In November 2008 the finance company assigned the debt to Lion Finance Pty Ltd.  On 8 December 2009 that company commenced proceedings in the Local Court against Ms Phillips claiming $9,258.64.  On 1 February 2010, it obtained judgment against her in the sum of $9,603.82.  Bankruptcy proceedings were commenced in 2010.  It seems that Ms Phillips was a recalcitrant bankrupt.  She did not complete a statement of affairs and although the debt was small, she did not make any attempt to come to an arrangement with her creditor or her trustee.  So eventually the trustee, losing patience, determined that in order to wind the estate up he would have to sell her property.  Ms Phillips resisted.

4. An application was made to the Supreme Court of New South Wales for a possession order.  This was granted, but Ms Phillips declined to provide the trustee with the certificate of title.  Another proceeding commenced.  Eventually, the certificate of title was handed over.  By this time, a very large sum of money in costs had been incurred.

5. The property has now been sold. There may or may not be some balance left over, after payment of the debt and the trustee’s expenses and costs, available for Ms Phillips. When the matter came before me on 14 October 2013, I understood from Ms Phillips that she was arguing that the property did not, in fact, belong to her or that for some other reason it did not form part of her bankrupt estate. I adjourned the application until today and I gave her leave to file and serve an amended application and affidavit in support by 6 November 2013. Such application was to include an application that the property was not part of her bankrupt estate pursuant to s.116 of the Act. Ms Phillips did not comply with that order and she is not here today. In those circumstances, given the history of the matter, I propose to dismiss the application, pursuant to Part 13 Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), and order that the applicant pay the respondent’s costs on the application which I am prepared to assess in the sum of $4,500.00.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  21 November 2013