Teese v Woodgate

[2004] FCA 1240

FEDERAL COURT OF AUSTRALIA

Teese v Woodgate [2004] FCA 1240

ANN CAROLYN TEESE V GILES GEOFFREY WOODGATE
N 1347 OF 2004

STONE J
17 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1347 OF 2004

BETWEEN:	ANN CAROLYN TEESE APPLICANT
AND:	GILES GEOFFREY WOODGATE RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	17 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The notice of motion be dismissed with costs.
2. The respondent has liberty to proceed with taxation forthwith.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1347 OF 2004

BETWEEN:	ANN CAROLYN TEESE APPLICANT
AND:	GILES GEOFFREY WOODGATE RESPONDENT

JUDGE:	STONE J
DATE:	17 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By notice of motion filed on 15 September 2004 the applicant, who is a bankrupt, seeks a stay of certain orders made by Federal Magistrate Raphael on 8 September 2004 pending the resolution of her appeal from the whole of the judgment of his Honour.  The applicant also seeks expedition of her appeal. 

2. On 15 September 2004, on the ex parte application of the bankrupt, I stayed the orders made in respect of the Clovelly Road premises until midday on 17 September 2004 or until further order.  On 17 September I dismissed the bankrupt’s notice of motion with costs and promised to provide written reasons at a later date.  These are those reasons. 

3. There were two proceedings before his Honour, SZ1303/2004 (‘annulment proceedings’) and SZ1297/2004 (‘possession proceedings’).  In the former the applicant was seeking an inquiry into the conduct of her trustee in bankruptcy, the respondent to this application (‘Trustee’), and annulment of her bankruptcy.   The possession proceedings were commenced by the Trustee who sought leave to issue a writ of possession in respect of premises in Clovelly Road, Clovelly and an order that the bankrupt vacate those premises.  Raphael FM made the orders sought by the Trustee but dismissed the bankrupt’s application in the annulment proceedings.  The stay sought by the applicant relates to orders that she vacate the Clovelly Road premises. 

4. The notice of appeal filed on 15 September is defective in several respects which, the applicant explains, are a result of the urgency with which it was prepared.  The grounds of appeal relate only to issues in the annulment proceedings and, on its face, the notice refers only to the file number of that proceeding.  Unusually the notice of appeal does not give an indication of the orders sought by the applicant.  I gave leave to the applicant to rectify those defects by filing and serving an amended notice of appeal. 

5. At the outset of his judgment Raphael FM commented that since the applicant was made bankrupt on 20 August 2002, there had been numerous proceedings between the parties and between the Trustee and a mortgagee of the bankrupt’s property and observed: 

   ‘The result of these proceedings is that the bankrupt’s estate, which originally consisted of two quite valuable properties … has now been severely diminished.’ 

6. It is not necessary to repeat his Honour’s outline of the background to the proceedings before him however his Honour’s account suggests that this is a regrettably common situation in which an obsession with the injustice (real or imagined) of claims made by creditors and an inability to adjust to the practical realities leads to bankruptcy.  In such cases it is also common to find much of the estate dissipated in fruitless legal proceedings.  The present case has all the hallmarks of this situation. 

7. His Honour rejected the bankrupt’s claims made in the annulment proceedings for a number of reasons.  Briefly, they included that the applicant’s application to annul her bankruptcy could not succeed because the applicant had not notified her creditors of the application and that, in any event, his Honour was not satisfied that the applicant’s resources were sufficient to satisfy all her debts.  In those circumstances his Honour declined to exercise his discretion in the applicant’s favour. 

8. His Honour also did not accept the applicant’s complaints about the Trustee which appeared to stem from the Trustee’s delay in dealing with her offer, made shortly after the sequestration order, to pay all her creditors in full.  This offer was made before the applicant had provided the Trustee with a completed statement of her affairs.  His Honour stated: 

   ‘I am satisfied that [the Trustee] was within his rights to insist that [the bankrupt] provide him with a statement of affairs before he could properly consider any proposal.  … [The Trustee] was entitled to take steps to satisfy himself of the veracity of the bankrupt’s statement of affairs after she had belatedly filed it.’ 

9. Similarly in the possession proceedings, his Honour was not satisfied that the applicant had put forward any credible proposal for resolving her debts and, in particular, for discharging the mortgage over the property should he refuse the orders sought by the Trustee.  It is not for me to decide if the applicant is to succeed in her appeal however, on the material presently available to me I do not perceive any error that might suggest the applicant is likely to succeed in her appeal. 

10. Given the history referred to in [6] above and the potential for the estate to be dissipated further, I am satisfied that the interests of justice are best served by my refusing the relief sought in the notice of motion.  The notice of motion must be dismissed with costs.  The respondent has liberty to proceed with taxation forthwith. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:       

Dated:            21 September 2004

Solicitor for the Applicant:	Mr Douglas Knaggs
Counsel for the Respondent	Mr JT Johnson
Solicitor for the Respondent:	Sally Nash & Co
Date of Hearing:	17 September 2004
Date of Judgment:	17 September 2004