FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PISCOPO v HILL (No.2) | [2009] FMCA 658 |
| BANKRUPTCY – Third further amended Interim Application regarding Summons for Examination – application to discharge Summons – Interim Application seeks to file and read an affidavit in relation to proof that the solicitors for the respondent in the main proceedings is a creditor of the bankrupt estate of Terry Donald Hill. |
| Civil Procedure Act 2005 (NSW), s.56 Evidence Act 1995 (Cth), ss.69, 135 Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), r.6.05 |
| Hill v James [2006] FCA 981 Hill v James (No 3) [2006] FMCA 622 James v Hill [2005] FCA 853 James v Hill [2005] FMCA 743 Roaches & Ors v Page & Ors (No 27) [2003] NSWSC 1046 |
| Applicant: | SAMUEL PISCOPO |
| Respondent: | TERRY DONALD HILL |
| File Number: | SYG 344 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 24 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 22 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Dubler SC with Mr D Allen |
| Solicitors for the Applicant: | Catalyst Legal |
| Solicitors for the Respondent: | NOT Lawyers |
ORDERS
The affidavit of Michael Stevens sworn on 2 April 2009 is accepted into evidence subject to its relevance in the main proceedings.
There be no order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 344 of 2008
| SAMUEL PISCOPO |
Applicant
And
| TERRY DONALD HILL |
Respondent
REASONS FOR JUDGMENT
Interim application
The matter before the Court concerns an interim application made by NOT Lawyers seeking to file and read an affidavit of Michael Stevens sworn on 2 April 2009 claiming that NOT Lawyers lodged a Proof of Debt in the amount of $4,437.43 representing unpaid bills for legal services incurred on behalf of Terry Donald Hill prior to his entering a personal insolvency agreement on 25 July 2005. The filing and reading of this affidavit was objected to by counsel for Samuel Piscopo, the Trustee.
The proceedings
Mr Piscopo is the Trustee of the bankrupt estate of Terry Donald Hill. The main proceedings before this Court concern an examination of the affairs of Mr Hill. The deposed examinees are Mr Hill, Eleanor Rose (Mr Hill’s wife) and their two solicitors, Michael O’Neill and Nicholas Eddy. An Application for Summons to Examine Relevant Person or Examinable Person was filed on 13 February 2008 with a supporting affidavit of Mr Piscopo. Summons for Examination were filed in respect of each examinee on the same date. This matter has yet to be decided by this Court.
The Summons for Examination had been served on Messrs Hill, O’Neill and Eddy. On 6 May 2008, Hedge R made an order pursuant to r.6.05 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) (“FMC Bankruptcy Rules”) that the Summons addressed to Ms Rose may be served by delivering it to Jacqueline Cole of NOT Lawyers, solicitors for Mr Hill. An interim application was filed by Ms Rose on 26 May 2008 seeking that the Examination Summons issued to her and Messrs Hill and O’Neill…
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- AGLC
- Piscopo v Hill [2009] FMCA 658
- Case
- [2009] FMCA 658
- Decision Date
CaseChat Overview and Summary
In reaching its decision, the court considered the arguments presented by both parties. The plaintiff argued for the acceptance of the affidavit, while the defendant questioned its relevance. The court examined the content of the affidavit and its potential impact on the case. Ultimately, the court accepted the affidavit into evidence but noted that its relevance would be further assessed in the main proceedings. The court also noted that no order would be made regarding costs at that stage of the proceedings.
The orders made by the court were that the affidavit of Michael Stevens sworn on 2 April 2009 be accepted into evidence, subject to its relevance in the main proceedings. Additionally, the court decided that no order would be made as to costs at that stage of the case. This decision allows the affidavit to be considered in the context of the full case while reserving judgment on its ultimate relevance.
Orders
Orders of the court
1.
The affidavit of Michael Stevens sworn on 2 April 2009 is accepted into evidence subject to its relevance in the main proceedings.
2.
There be no order as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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