Simonsen v Official Trustee in Bankruptcy
[2008] FMCA 617
•23 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIMONSEN v OFFICIAL TRUSTEE IN BANKRUPTCY | [2008] FMCA 617 |
| BANKRUPTCY – Provable debt. PRACTICE & PROCEDURE – Adjournment – whether adjournment sine die to be granted. |
| Federal Magistrates Act, 1999 (Cth) s.3 Federal Magistrates Court Rules, 2001 (Cth) r.1.03 |
| Legge v Mackinlay Solicitors [2008] FCA 345 Legge v Mackinlay Solicitors (No 2) [2008] FCA 513 |
| Applicant: | MARK JEFFREY SIMONSEN |
| Respondent: | OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF GEOFFREY SPENCER LEGGE |
| File Number: | PEG 164 of 2007 |
| Judgment of: | Lucev FM |
| Hearing dates: | 10 December 2007, 19 March & 23 April 2008 |
| Date of Last Submission: | 23 April 2008 |
| Delivered at: | Perth |
| Delivered on: | 23 April 2008 |
REPRESENTATION
| Applicant: | Mark Jeffrey Simonsen |
| Counsel for the Respondent: | Mr R Harrison |
| Solicitors for the Respondent: | Tottle Partners |
ORDERS
(1) That the application be dismissed.
(2)That the Applicant pay the Respondent’s costs of the proceedings up to and including the proceedings on 10 December 2007, and if not agreed, to be taxed, under Order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 164 of 2007
| MARK JEFFREY SIMONSEN |
Applicant
And
| OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF GEOFFREY SPENCER LEGGE |
Respondent
REASONS FOR JUDGMENT
(EX TEMPORE EDITED FROM THE TRANSCRIPT)
Application
By application dated 10 August 2007, the Applicant sought orders that certain sums be allowed as a provable debt in the bankruptcy of Jeffrey Spencer Legge.
Hearing
The application was heard by this Court on 10 December 2007 and adjourned part heard to 19 March 2008. On that date judgment was reserved to a date to be fixed.
Federal Court appeal
In the course of the preparation of the Reasons for Judgment, this Court became aware that on 10 March 2008 the Federal Court had heard and determined an appeal in Legge v Mackinlay Solicitors.[1] That appeal concerned the bankruptcy of Mr Legge. In that appeal it was by consent ordered that the bankruptcy of Mr Legge be annulled.
[1] [2008] FCA 345.
Further hearing
This Court made the parties aware of its awareness of the Federal Court judgment and orders in Legge v Mackinlay Solicitors by letter dated 31 March 2008 and relisted the matter for a further short hearing on 9 April 2008 to allow the parties to address the effect, if any, of the judgment and orders in Legge v Mackinlay Solicitors. The hearing on 9 April 2008 was administratively adjourned to 23 April 2008 to allow for the hearing of a notice of motion in the Federal Court by the Applicant directed to setting aside the consent orders made in Legge v Mackinlay Solicitors.
In Legge v Mackinlay Solicitors No 2,[2] delivered on 10 April 2008, the Federal Court ordered that Mr Simonsen’s notice of motion be dismissed. The position is, therefore, that Mr Legge’s bankruptcy has been annulled. There is no bankruptcy in which to prove a debt as is sought in the application.
[2] [2008] FCA 513
Adjournment sought
The Applicant adverted to the possibility of other proceedings, both by Mackinlay Solicitors and by himself, in relation to the debts of Mr Legge, and suggested, albeit tentatively, that the Court may be prepared to consider adjourning the matter sine die.
As the Court indicated to the Applicant in the course of argument, it is not generally the practice of this Court to adjourn matters sine die, and it is something which only occurs very rarely as it is contrary to both the objects of the Federal Magistrates Act, 1999 (Cth) s.3 and the Federal Magistrates Court Rules 2001 (Cth) r.1.03.
In the circumstances the Court is not prepared to adjourn the matter pending the outcome of any further proceedings, being proceedings which are, at this stage, only foreshadowed and nothing further. So there will be no order for an adjournment.
Costs
In relation to costs, this is a case in which costs ought to follow the event. Notwithstanding the judgments and orders which have been made by the Federal Court, it is the case that the Respondent has been put to defending the application which has been made, which application now has no basis.
In those circumstances, it is proper in the Court’s view that costs follow the event, save for this: it would appear that the Respondent was aware of the judgment and orders of the Federal Court dated 10 March 2008 when the matter came before this Court on 19 March 2008, and counsel for the Respondent quite properly dealt with that in his submissions to the Court today. It is fair that the costs of 19 March 2008 ought not be awarded to the Respondent, albeit that the hearing on 19 March 2008 probably did not affect the ultimate outcome, but as a matter of fairness, and having regard to what was put to the Court by counsel for the Respondent, the Court will not order that the Applicant pay the costs of the hearing on 19 March 2008, but rather make an order that the Applicant pay the Respondent’s costs of the proceedings up to the end of 10 December 2007.
Orders
The orders the Court will make in this matter are as follows:
(1) that the application be dismissed; and
(2)that the Applicant pay the Respondent’s costs of the proceedings up to and including the proceedings on 10 December 2007, and if not agreed, to be taxed, under Order 62 of the Federal Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S Gough
Date:
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