Sheahan, John as Trustee of the Bankrupt Estates of Jillian Helen Marshall, Richard John Cooper and Simon Vincent Cooper v Cooper, Noelene Michelle

[1998] FCA 1526

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 112 of 1998

BETWEEN:

JOHN SHEAHAN
Trustee of the Bankrupt Estate of
Jillian Helen Marshall and the Bankrupt Estates of
Richard John Cooper and Simon Vincent Cooper
APPLICANT

AND:

NOELENE MICHELLE COOPER
FIRST RESPONDENT

JANET ETHEL COOPER
SECOND RESPONDENT

MARTIN JAMES COOPER
THIRD RESPONDENT

ANDREW CHARLES COOPER
FOURTH RESPONDENT

ROTHMORE PTY LTD
ACN 007 956 327
FIFTH RESPONDENT

JUDGE:	MANSFIELD J
DATE:	29 OCTOBER 1998
PLACE:	ADELAIDE

REASONS FOR DECISION

HIS HONOUR: The Court directed earlier today that the issue as to whether an order under s 70 of the Law of Property Act1936 (SA) (“the Act”) should be made for the sale of the farming property known as Rothmore Farm be heard and determined separately from, and before, the hearing of that part of the application as to the distribution of the proceeds of any such sale.  I received the affidavits tendered by the applicant for that limited purpose, and indicated that when and if the matter was to proceed in respect of any order for the distribution of proceeds of sale, the deponents Holbrook and Clarke be available for cross-examination.

On the limited issue identified, the respondents have now sought to tender the affidavits of Mr Andrew Charles Cooper and of Mr Gerald Dee both of 23 October 1998.  I decline to receive Mr Dee’s affidavit on that part of the application presently to be heard because I am not persuaded that it has any relevance to the issues.  In relation to the affidavit of Mr Andrew Charles Cooper, notice was given yesterday that he was required for cross-examination.  He is not present today.  I accept that that is simply because, in the exigencies of time, the notice requiring his attendance did not come to the attention of solicitors acting for him, and so to his attention.  I accept therefore that there is no fault on any person in his non-attendance.

Notwithstanding that, I presently decline to receive Mr Cooper’s affidavit on that part of the application which the Court is presently to hear. It is laconically expressed. First, it is said that his affidavit touches upon the question of whether any order should be made under s 71 of the Act. I propose to make an order which will protect the respondent’s interests in that regard in any event. It is also said that his affidavit might touch upon the eligibility of the applicant for the orders sought for sale, or the appropriateness of the order sought for sale. That is (it is said) by reason of an agreement which he deposes has been entered into with the company Belgravia Pty Ltd on 15 February 1993, the benefits of which were subsequently transferred to Mr Cooper in May 1998, and then to Mr Tennyson Turner in August 1998. Then it is said that that transaction in some way creates an equitable interest in Rothmore Farm or part of it, and so is relevant to the order which I am asked to make.

When this matter came on for hearing initially on 16 October 1998, Mr Turner appeared for himself and orally applied to be joined as a party.  He claimed, apparently by virtue of the transactions to which Mr Cooper’s affidavit refers, a right to go on Rothmore Farm to complete the cropping of the present crop but not otherwise.  He did not then assert a claim to any equitable interest in Rothmore Farm.  It is apparent from the transcript at the time that the right claimed was restricted to the present crop.  Counsel for the applicants at that time proffered, and I accepted, an undertaking that any order for the sale of Rothmore Farm or any part of it would be subject to protecting such right as Mr Turner claimed in respect of continuing access to the land to manage and harvest the present crop, to remove that crop and to retain the proceeds.  Effectively, any order for sale of the land will be specifically subject to a condition to protect that interest of Mr Turner, to the extent to which it is asserted by him as the ultimate holder of the benefit of the agreement of 15 February 1993.  Upon that basis, I refused the oral application of Mr Turner to be joined as a party.  I also indicated to him that if he wished to renew his application, he should do so by a formal application supported by affidavit.  No such application has been made today.

For the purposes of the hearing of this application, I will assume that the right which Mr Turner claims (which is contested in separate proceedings in the Court), does exist.  The undertaking given will need to be formalised by the applicant, subject to his claims in the other proceedings contesting that right, so as to recognise and give effect to that claimed right in any sale of the property.  As Mr Turner is, in the affidavit of Mr Cooper, the repository of whatever relevant interest the asserted agreement of 15 February created, and Mr Turner’s claimed right is protected in the manner described, in my view, that part of Mr Cooper’s affidavit which is said to be relevant to the present issue is properly given effect to.

I also propose, if I make an order for the sale of the farming lands, to suspend the operation of that order for twenty-eight days, during which Mr Cooper will be able to make an application to the Court under s 71 of the Act, supported as he may be advised. If he does take such action, he will no doubt need to expand upon the present brief material. Any further material will need to explain his capacity to meet any acquisition costs in the event that an order is made. In that way it seems to me that the other aspects of his affidavit for which, presently, relevance is claimed can be accommodated.

In making those orders or rulings, it is also necessary to protect the applicant’s position.  The matter was listed for hearing on 16 October 1998.  The applicant was prevented from proceeding on that date in the circumstances outlined in the reasons then given for further adjourning the matter.  A further hearing date was fixed for today.  The applicant has attended today in anticipation of that hearing.  Circumstances have again occurred which prevent a full hearing.  Consistent with doing justice between the parties, to the extend that the Court is able to do so, in the interests of the applicant and the other litigants before the Court, the Court should proceed with the hearing to which the applicant is entitled and which, as trustee of the estates of Jillian Helen Marshall, Richard John Cooper and Simon Vincent Cooper, he is obliged to pursue in the interests of the creditors of those estates.

I certify that this and the preceding two (3) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.

Associate:

Dated:             

Counsel for the Applicant:	Mr R J Whitington QC with him Mr G Davis
Solicitor for the Applicant:	Piper Alderman
Counsel for the Respondents:	Mr D C Kennelly
Solicitors for the Respondents:	Alderman Consultant Solicitors
Date of Hearing:	29 October 1998
Date of Decision:	29 October 1998