Re Edelsten, G.W.; Ex parte Donnelly, M.C. v Edelsten, G.W.

[1992] FCA 456

IN THE FEDERAL COURT OF AUSTRALIA	JUDGMENT No. ..45...,l 22.
EXERCISING FEDERAL JURISDICTION IN BANKRUPTCY

BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN

CAPITAL TERRITORY

RE :  GEOFFREY WALTER EDELSTEN

Bankrupt

EX PARTE:  MAX CHRISTOPHER DONNELLY

AS TRUSTEE FOR THE ESTATE OF

GEOFFREY WALTER EDELSTEN

Applicant

AND :  GEOFFREY WALTER EDELSTEN AND OTHERS

Respondents

COURT :	NORTHROP J
PLACE :	MELBOURNE
m:	25 tIAY 1992

I propose to grant the amendments sought to what now

the VIP companies, and each of them, a reference to paragraph

assets, undertakings and businesses owned and/or conducted by

6 of the amended statement of claim merely identifies those businesses; there are some ten of them. Paragraph 10 is the equivalent of an earlier paragraph, paragraph 13, for which leave had been granted to the applicant to include in the application relating again to the beneficial ownership of the assets, undertaking and goodwill of some five of the ten businesses referred to in paragraph 6 of the statement of claim.

2 the insertion of the name "VIP Management Pty Limited" and in paragraph 7 the words underlined.

appears in paragraph 7 of the document headed "Further Amended which have already been granted but there are two additional amendments: in paragraph

The words underlined, in my opinion, relate to the

In my opinion, the effect of the underlined words in

paragraph 7 is to include as part of the history of the matter
the assets, undertaking and businesses owned by, and/or
conducted by the VIP companies as part of the process which is
to be included for the purposes of paragraph 10 of the

application.

To that extent it does not add anything new. I am also

satisfied that on page 6 of the document, "Further Amended

Application", the words:  "On the hearing of the application

it is intended to aduce oral evidence" are not intended and

should not be used for the purpose of conducting or opening
some new case, but merely as ancillary to any material that
might have been ruled inadmissible in the affidavits referred
to on pages 9 and 10 of the document, which affidavits are

said to be the affidavits to be relied upon.

The main burden of the submissions made by Mr Collins on

behalf of the fourteenth respondent is the uncertainty and

doubt as to just what it is the applicant is seeking.

To a

which these proceedings were initially commenced and conducted up until the commencement of the hearing a few weeks back.

large extent this has arisen because of the unfortunate way in At some stage it will be necessary for counsel for the applicant to make clear just what are the assets, undertaking and businesses which are being sought to be included in the declarations and which would come within the control of any receiver and manager that may be appointed pursuant to paragraph 16 of the further amended application. At the moment it appears that it is directed to the assets and other matters contained in the agreement of 13 February being the sale agreement referred to in paragraph 6 of the Further Amended Application. If it goes beyond that it will be necessary, I think, for the whole matter to be raised and considered as a separate issue.

For these reasons leave is granted to the applicant to

amend the application in the form of the Further Amended

Application which I direct be now filed in Court.

I certify that this and the preceding two (2) pages are a true copy of the Ex Tempore Reasons for Judgment of the Honourable

M r Justice R.M. Northrop.

.

Associate: 7-

Date :