FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SEE v GRANICH & ASSOCIATES | [2008] FMCA 27 |
| BANKRUPTCY – Annulment of sequestration order – previous failed applications in federal courts to annul sequestration order – discretion – delay. PRACTICE AND PROCEDURE – Previous decisions of federal courts – comity – res judicata – whether applicant a vexatious litigant. . |
| Bankruptcy Act 1966 (Cth) s.153B Vexatious Proceedings Restriction Act 2002 (WA) s.6 |
| Granich v Yap [1999] FCA 1039 Yap v Granich & Associates [2002] FMCA 284 Yap v Granich & Associates [2004] FCA 1566 JD Heydon, Cross on Evidence. Seventh Australian Edition (Sydney: LexisNexis Butterworths, 2004) |
| Applicant: | YAP CHENG SEE |
| Respondent: | GRANICH & ASSOCIATES |
| File Number: | PEG 264 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 22 February 2007 |
| Date of Last Submission: | 22 February 2007 |
| Delivered at: | Perth |
| Delivered on: | 22 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms C S Yap in person |
| Counsel for the Respondent: | Ms S E Harrison |
| Solicitors for the Respondent: | Mallesons Stephen Jaques |
ORDERS
The application is dismissed.
The applicant must not file any proceeding in the Federal Magistrates Court without first obtaining leave from a Federal Magistrate.
The applicant must not continue any proceeding presently filed in the Federal Magistrates Court without first obtaining leave from a Federal Magistrate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 264 of 2006
| YAP CHENG SEE |
Applicant
And
| GRANICH & ASSOCIATES |
Respondent
REASONS FOR JUDGMENT
Introduction
Yap Cheng See[1] was made bankrupt as a consequence of a sequestration order made against her by the District Registrar of the Federal Court of Australia[2] on 10 December 1998.
[1] “Applicant”.
[2] “Federal Court”.
In an attempt to annul the bankruptcy the Applicant instituted various proceedings in the Federal Court naming Granich & Associates[3] as respondent in the ensuing years, all of which were unsuccessful.[4]
[3] “Respondent”
[4] Granich v Yap [1999] FCA 1039 (“Yap Federal Court 1999”); Yap v Granich & Associates [1999] FCA 1867 (“Yap Federal Court Appeal 1999”); Yap v Granich & Associates [2001] FCA 799 (“Yap Federal Court 2001”); Yap v Granich & Associates [2001] FCA 1735 (“Yap Federal Court Appeal 2001”); Yap v Granich & Associates [2004] FCA 647 (“Yap FMC Appeal 2004”).
In this Court an application by the Applicant to annul her bankruptcy was dismissed on 30 October 2002, and in the course of dismissal described as an abuse of process.[5] That description was held to be “correct” on appeal.[6]
[5]
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- See v Granich & Associates [2008] FMCA 27
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- [2008] FMCA 27
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CaseChat Overview and Summary
The primary legal issues the court had to address were whether the applicant's third application for annulment constituted an abuse of process and whether the applicant should be considered a vexatious litigant. The court also had to consider the principle of comity in relation to previous decisions made by other federal courts, as well as the doctrine of res judicata.
The court held that the applicant's conduct in pursuing this application was an abuse of process and amounted to vexatious litigation. It found that the applicant had not demonstrated any new evidence or changed circumstances that would warrant the reconsideration of the sequestration order. The court further held that the applicant's previous failed applications and the delay in making this application demonstrated a disregard for the legal process. Consequently, the court dismissed the application and imposed restrictions on the applicant's ability to file further proceedings in the Federal Magistrates Court without obtaining leave from a Federal Magistrate.
Orders
Orders of the court
1.
The application is dismissed.
2.
The applicant must not file any proceeding in the Federal Magistrates Court without first obtaining leave from a Federal Magistrate.
3.
The applicant must not continue any proceeding presently filed in the Federal Magistrates Court without first obtaining leave from a Federal Magistrate.
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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