Shipp v Sword

[2002] FMCA 37

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHIPP v SWORD [2002] FMCA 37

BANKRUPTCY – Ex parte injunction vacated – conduct of parties – failure to provide available evidence on ex parte hearing – no orders as to costs.

Applicant: CATRIONA MOYRA SHIPP

Respondent: MALCOLM BAIRD SWORD

File No: WZ105 of 2001

Delivered on: 18 February 2002

Delivered at: Perth

Hearing Date: 18 February 2002

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: Mr W Goodlet

Solicitors for the Applicant: Unmack & Unmack

Counsel for the Respondent: Mr T Coyle

Solicitors for the Respondent: Phillips Fox

ORDERS

(1)Order 3 of the court made on 19 November 2001 be vacated.

(2)There be no order as to costs

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ105 of 2001

CATRIONA MOYRA SHIPP

Applicant

And

MALCOLM BAIRD SWORD

Respondent

REASONS FOR JUDGMENT

1. This is the return of an application for injunctive relief which had been commenced in this court by the applicant on an ex parte application which was dealt with by the court on 19 November 2001.  On that occasion the court heard submissions by the representative of the applicant, Mr Goodlet, which essentially related to seeking orders by way of injunctive relief against the respondent in relation to items which were disputed items of the estate, and those items had in fact been and continue to be the subject of proceedings in the Supreme Court of Western Australia.

2. At the time when the application was then heard the court had before it an affidavit sworn by Walter Leslie Goodlet filed on 16 November 2001.  In that affidavit the deponent refers to the fact that the applicant, his client, had asserted that she was in fact the beneficiary under the terms of a will and that the deceased estate at that stage of her late father included an item of jewellery, amongst other antique items.

3. Without transgressing all the facts and circumstances in that affidavit and without also dealing with a further affidavit which was filed on

   
   

   16 November 2001 by the applicant, in essence what was before the court was a concern overall as to the lack of participation or compliance with those matters which were the subject of proceedings in the state Supreme Court by the respondent.  There was concern expressed about the continued involvement of the respondent's solicitors, concern expressed about the whereabouts of the respondent and knowledge at least at that stage that the respondent was then residing in the state of Queensland and that his whereabouts were unknown, save and except that there was an intended journey overseas.

4. At that stage I accepted that the ex parte application was made in circumstances where there was a significant degree of uncertainty both in relation to the whereabouts of the respondent and in particular the possibility that he may dispose of certain items which are in dispute as to whether or not they form part of an estate and in turn would be items which the applicant might at least be…