Sampson (Trustee) v Taboada

[2016] FCA 1044

FEDERAL COURT OF AUSTRALIA

Sampson (Trustee) v Taboada [2016] FCA 1044

File number(s):

NSD 650 of 2016

Judge(s):

BURLEY J

Date of judgment:

26 August 2016

Legislation:

Bankruptcy Act 1996 (Cth) s 139ZQ

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth) rr 5.02, 8.21, 39.05

Date of hearing:

Heard on papers

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

No Catchwords

Number of paragraphs:

6

Solicitor for the Applicant:

Ms S Heimanis of Grace Lawyers

ORDERS

NSD 650 of 2016

BETWEEN:

DAVID SAMPSON AS TRUSTEE OF THE BANKRUPT ESTATES OF NATALIE JOANNE MAKISI & TUIPULOTU SIONE MAKISI

Applicant

AND:

MONICA TABOADA

First Respondent

JULIO TABOADA

Second Respondent

JUDGE:	BURLEY J
DATE OF ORDER:	26 AUGUST 2016

THE COURT ORDERS THAT:

1.On the application of the applicant, that the originating application and statement of claim be amended by:

(a)changing the name of the first respondent from “Monica Taboda” to “Monica Toboada”; and

(b)changing the name of the second respondent from “Julio Taboda” to “Julio Taboada”.

2.The proceedings be taken to have been commenced with the respondents’ names as amended in order 1.

3.The orders made on 12 August 2016 be varied such that the words “(Monica Taboada and Julio Taboada)” be added after the word “respondents” in each of orders 1, 2 and 3.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1. Judgment was delivered in these proceedings on 12 August 2016.  Following that date, the applicant’s solicitor informed the Court that there was an error in the originating application and statement of claim in that the first respondent had been named as “Monica Taboda” and the second respondent had been named as “Julio Taboda” when in fact their surnames should have been spelt as “Taboada”.

2. The substantive proceedings concerned the failure on the part of the respondents to comply with a notice issued by the Official Receiver pursuant to section 139ZQ of the Bankruptcy Act 1996 (Cth), which required them to make payment of the sum of $262,026.29. The respondents, by their solicitors, filed a notice of address for service in accordance with rule 5.02 of the Federal Court Rules 2011 (Cth), in which the respondents’ surname is correctly recorded as “Taboada”. The notice issued by the official receiver pursuant to section 139ZQ of the Bankruptcy Act, 1966 (Cth), also records the correct spelling of the respondents’ surname.

3. As noted in the judgment of 12 August 2016, the respondents did not appear at the hearing.

4. In submissions received from the solicitors representing the applicant, I have been informed that the respondents’ surnames have been spelt incorrectly as a result of a typographical error.  There has, it appears from the papers that I have mentioned above, been no doubt as to the correct identity of the respondents.

5. In the circumstances, I am satisfied that it is appropriate to make an order pursuant to rule 8.21 of the Federal Court Rules 2011 (Cth), that the originating application and statement of claim be amended by changing the spelling of the surname of each of the first and second respondents to reflect the correct position, namely that it is spelt “Taboada” and that the proceedings be taken to have been commenced using the respondents’ names as so amended.

6. I am also satisfied that it is appropriate, to avoid any doubt, to apply rule 39.05 of the Federal Court Rules 2011 (Cth) to vary the orders that were made on 12 August 2016 to read as follows (with additional wording underscored):

   (1)That the respondents (Monica Taboada and Julio Taboada) pay the applicant $262,026.29.

   (2)That the respondents (Monica Taboada and Julio Taboada) pay interest pursuant to section 51 A of the Federal Court of Australia Act 1976 (Cth) from 7 December 2015 until 21 June 2016, which I assess to be $8,527.86.

   (3)That the respondents (Monica Taboada and Julio Taboada) pay the applicant’s costs of the proceedings.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.

Associate:

Dated:        26 August 2016