Southwell v Maladina - [2002] FCA 1094

FEDERAL COURT OF AUSTRALIA
Southwell v Maladina [2002] FCA 1094
ROBERT SOUTHWELL v JAMES MUSTATA MALADINA (aka JIMMY MALADINA), JANET MALADINA, FERRAGAMO LIMITED (FORMERLY KNOWN AS FERRAGAMO PTY LIMITED), FERRAGAMO (AUST) PTY LIMITED ACN 084 743 144, ORD MINNETT MANAGEMENT LIMITED ACN 002 262 240 AND NATIONAL PROVIDENT FUND BOARD OF TRUSTEES
Q 7027 OF 2002
DOWSETT J
1 AUGUST 2002
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 7027 OF 2001

BETWEEN:

ROBERT SOUTHWELL
APPLICANT

AND:

JAMES MUSTATA MALADINA (aka JIMMY MALADINA)
FIRST RESPONDENT

JANET MALADINA
SECOND RESPONDENT

FERRAGAMO LIMITED (FORMERLY KNOWN AS FERRAGAMO PTY LIMITED)
THIRD RESPONDENT

FERRAGAMO (AUST) PTY LIMITED ACN 084 743 144
FOURTH RESPONDENT

ORD MINNETT MANAGEMENT LIMITED ACN 002 262 240
FIFTH RESPONDENT

NATIONAL PROVIDENT FUND BOARD OF TRUSTEES
SIXTH RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

1 AUGUST 2002

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The summonses issued in these proceedings to Maurice Sullivan and Dale Treanor on 28 February 2002 and 22 April 2002 respectively be set aside.

2.Summonses issue in accordance with exhibits 1 and 2 in these proceedings.

3.The applicant in the principal proceedings, Robert Southwell, pay the costs of Dale Treanor and Maurice Sullivan of and incidental to the notices of motion to set aside the summonses issued to them, including the costs of the appearances on Monday, 29

July, and Thursday, 1 August 2002

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q 7027 OF 2001

BETWEEN:

ROBERT SOUTHWELL
APPLICANT

AND:

JAMES MUSTATA MALADINA (aka JIMMY MALADINA)
FIRST RESPONDENT

JANET MALADINA
SECOND RESPONDENT

FERRAGAMO LIMITED (FORMERLY KNOWN AS FERRAGAMO PTY LIMITED)
THIRD RESPONDENT

FERRAGAMO (AUST) PTY LIMITED ACN 084 743 144
FOURTH RESPONDENT

ORD MINNETT MANAGEMENT LIMITED ACN 002 262 240
FIFTH RESPONDENT

NATIONAL PROVIDENT FUND BOARD OF TRUSTEES
SIXTH RESPONDENT

JUDGE:

DOWSETT J

DATE:

1 AUGUST 2002

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This Court is presently seized of proceedings in bankruptcy in which the bankrupt is Jimmy Maladina, formerly a resident of Papua New Guinea. The sequestration order was made in the High Court of Papua New Guinea but has been the subject of a letter of request to this Court seeking the Court's assistance in that bankruptcy. This was brought about by the fact that Mr and Mrs Maladina had come to Australia and were residing here.
The examination of the bankrupt has proceeded, and at the present time I am considering applications to review orders made by a deputy registrar pursuant to s 81 of the Bankruptcy Act 1966 (Cth) (the “Act”) for the examination of Maurice Sullivan and for an order that he attend for such examination and produce certain documents. It is, as I understand it, accepted by the Trustee in Bankruptcy that the order obtained in its present form is defective. The Trustee has today tendered an order which he seeks in lieu of that order. To that extent, then,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] FCA 1094
Decision Date: 1 AUGUST 2002

CaseChat Overview and Summary

The proceedings in Southwell v Maladina involved Robert Southwell as the applicant and Dale Treanor and Maurice Sullivan as respondents. The dispute arose out of proceedings against the defendant, Maladina, where the applicant sought to enforce certain court orders. The respondents were summoned to provide information, but they applied to set aside the summonses, arguing they were not proper parties to the original proceedings. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the summonses issued to the respondents were valid, considering they were not parties to the original proceedings against Maladina. The respondents contended that the summonses were improper because they were not directly involved in the case against Maladina and, therefore, had no obligation to comply. The court had to determine whether the summonses could be set aside and whether the respondents were correct in asserting their lack of involvement.

The court found that the summonses were indeed improper and set them aside. It reasoned that the respondents were not parties to the original proceedings and, as such, had no duty to provide information under the summonses. The court held that the summonses were issued in error and did not consider the respondents' status or involvement in the original case. Consequently, the summonses were quashed, and the respondents were not required to comply with them.

The orders of the court included setting aside the summonses issued to Dale Treanor and Maurice Sullivan, issuing new summonses in accordance with exhibits 1 and 2, and directing the applicant, Robert Southwell, to pay the costs of the respondents for the notices of motion to set aside the summonses, including the costs of their appearances on 29 July and 1 August 2002.

Orders

Orders of the court

1. The summonses issued in these proceedings to Maurice Sullivan and Dale Treanor on 28 February 2002 and 22 April 2002 respectively be set aside.

2. Summonses issue in accordance with exhibits 1 and 2 in these proceedings.

3. The applicant in the principal proceedings, Robert Southwell, pay the costs of Dale Treanor and Maurice Sullivan of and incidental to the notices of motion to set aside the summonses issued to them, including the costs of the appearances on Monday, 29

July, and Thursday, 1 August 2002

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

DOWSETT J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: DOWSETT J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 7027 OF 2001

BETWEEN:	ROBERT SOUTHWELL APPLICANT
AND:	JAMES MUSTATA MALADINA (aka JIMMY MALADINA) FIRST RESPONDENT JANET MALADINA SECOND RESPONDENT FERRAGAMO LIMITED (FORMERLY KNOWN AS FERRAGAMO PTY LIMITED) THIRD RESPONDENT FERRAGAMO (AUST) PTY LIMITED ACN 084 743 144 FOURTH RESPONDENT ORD MINNETT MANAGEMENT LIMITED ACN 002 262 240 FIFTH RESPONDENT NATIONAL PROVIDENT FUND BOARD OF TRUSTEES SIXTH RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	1 AUGUST 2002
WHERE MADE:	BRISBANE

JUDGE:	DOWSETT J
DATE:	1 AUGUST 2002
PLACE:	BRISBANE