Tarrant v Statewide Secured Investments Ltd

[2011] HCATrans 352

[2011] HCATrans 352

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S301 of 2011

B e t w e e n -

SANDRA LEE TARRANT

Applicant

and

STATEWIDE SECURED INVESTMENTS LTD

Respondent

Application for reinstatement

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 14 DECEMBER 2011, AT 9.41 AM

Copyright in the High Court of Australia

MS S.L. TARRANT appeared in person.

HIS HONOUR:   Ms Tarrant, you appear on your own behalf in this matter, I believe?

MS TARRANT:   Yes, I do, your Honour.

HIS HONOUR:   Again, it is a reinstatement where, having taken account of a public holiday, you were a day late?

MS TARRANT:   Yes, your Honour.

MR P. CUTLER:   May it please your Honour, I appear for the respondent.  (instructed by Carrolls Lawyers)

HIS HONOUR:   Yes, Mr Cutler.

MR CUTLER:   Your Honour, can I just explain something.  My client has filed a submitting appearance in relation to the leave application, but we oppose reinstatement and the reason why we oppose reinstatement is Ms Tarrant became bankrupt on 18 October this year.  We say this is no longer her application to make and Mr Tierney, solicitor, is here as well.  He appears for the trustee.

HIS HONOUR:   Right.  I should, I think, take an appearance, should I, from Mr Tierney for the trustee.  Is that right?

MR M.S. TIERNEY:   May it please your Honour, I appear for Paul Leroy in his capacity as trustee of the bankrupt estate of the applicant.  Mr Leroy was appointed by order of the Federal Magistrates Court on 18 October this year.  Your Honour, I have yet to file an appearance but can do so in the Registry today.

HIS HONOUR:   Yes.  What is the attitude of the trustee, Mr Tierney, to the continuation or reinstatement of the application for leave?

MR TIERNEY:   Your Honour, my instructions will be to file a submitting appearance, which I have now, but I can say that it is the trustee’s position that the applicant no longer has standing in relation to these proceedings and it is an action now in the trustee in the estate.

HIS HONOUR:   Yes.  With the consequence, Mr Tierney, for the present application, that is, the application for reinstatement?

MR TIERNEY:   That is right.  I will need to take instructions on whether the trustee would like to proceed with the application.  I think it is pursuant to section 60(3) of the Bankruptcy Act.  I can indicate that it is unlikely that he will proceed.

HIS HONOUR:   Yes.  Ms Tarrant, you have heard what Mr Tierney has had to say about the intervention of bankruptcy.  On the face of things, if what he says is accurate that bankruptcy intervened on 18 October, there seems at least great force in his proposition that the trustee in bankruptcy now has the carriage of this application and has the power and is the only person having power to decide whether to proceed or not proceed with the application.

MS TARRANT:   Could I just say that I have actually objected to Mr Leroy to be the trustee because he works for Hall Chadwick and Hall Chadwick are my accountants and there is a conflict of interest there.  Also, I have an appeal lodged to be heard on 8 February about the bankruptcy and I also have an interim application which is seeking a stay which has yet a date to be determined.

HIS HONOUR:   Yes.  The summons on which you move is a summons of 6 October, a summons which was issued before the date on which the appointment of a trustee is said to have occurred.  Having regard to what you say about the particular proceedings you are taking in the Federal Magistrates Court and elsewhere about the bankruptcy and who should be your trustee and the like, it seems to me that a course of action that might be thought proper is simply to stand out of the list generally, that is, to adjourn to no fixed date, the application for reinstatement.

That would enable the resolution of the proceedings you have indicated you are proposing to take or have taken about the bankruptcy.  It would allow an opportunity, once those proceedings are resolved, for the trustee to form an opinion about whether to take over the proceedings or not take over the proceedings.  But having regard to the fact that the summons for reinstatement was instituted before bankruptcy orders were made, at least a possible point of view is that the better course is simply to stand the matter over until all this other satellite litigation is resolved.  What do you say about that?

MS TARRANT:   That sounds very good, thank you.

HIS HONOUR:   Yes.  Mr Tierney, ordinarily I would be reluctant to stand an application for reinstatement out of the list, but having regard to the chronology where the application is made before the order is made and having regard to the indication that there either is or may be some litigation about who should be trustee and perhaps about whether there should be a bankruptcy at all, what do you say about my adopting that course?

MR TIERNEY:   I think that course is appropriate, your Honour.

HIS HONOUR:   Yes.  What I will do then is simply stand the application for reinstatement out of the list generally.  Either party has liberty to apply on not less than two days notice in writing to opposite parties.  If I reserve the costs, does anybody suggest that I should make some further order?

MR TIERNEY:   No, your Honour.

MR CUTLER:   No, your Honour.

HIS HONOUR:   Yes.  Do you understand, Ms Tarrant, that the application remains unresolved?  I have stood it out of the list generally.  Either party may apply to bring the application on again on not less than two days notice in writing.  I have made no order for costs except reserving them.  Ultimately, this will give the parties an opportunity to fight through the various applications that you have either made or indicated may be made.

MS TARRANT:   Yes, your Honour, thank you.

HIS HONOUR:   Yes.  There will be orders in those terms.  I will adjourn until 10.30 Eastern Summer Time to establish a video link to Brisbane.  Adjourn.

AT 9.50 AM THE MATTER WAS ADJOURNED