Trkulja v Morton

[2005] FCAFC 259

FEDERAL COURT OF AUSTRALIA

Trkulja v Morton [2005] FCAFC 259

BANKRUPTCY – application for removal of trustee in bankruptcy – alleged threats of blackmail/unlawful conduct – Inspector-General in Bankruptcy

Bankruptcy Act 1966 (Cth) ss 12, 149J, 179

Doolan v Dare (2004) 2 ABC (NS) 16 considered

MICHAEL TRKULJA v ROBERT MORTON

VID 601 OF 2005

LEE, TAMBERLIN and DOWSETT JJ
13 DECEMBER 2005
BRISBANE (VIA VIDEO-LINK - HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 605 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MICHAEL TRKULJA APPELLANT
AND:	ROBERT MORTON RESPONDENT

JUDGES:	LEE, TAMBERLIN AND DOWSETT JJ
DATE OF ORDER:	13 DECEMBER 2005
WHERE MADE:	BRISBANE (VIA VIDEO-LINK - HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The Registrar forward to the Inspector-General in Bankruptcy copies of the following documents:

·    the application and all affidavits filed in this matter;

·    transcript of evidence at first instance;

·    transcript of contents of the tape recording;

·    his Honour’s reasons for judgment at first instance;

·    the notice of appeal; and

·    these reasons.

3.Each party have liberty to move, on seven days’ notice to the other, for any order as to costs, such notice of motion to be filed not later than seven days from the date of publication of these reasons.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 601 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	MICHAEL TRKULJA APPELLANT
AND:	ROBERT MORTON RESPONDENT

JUDGES:	LEE, TAMBERLIN AND DOWSETT JJ
DATE:	13 DECEMBER 2005
PLACE:	BRISBANE (VIA VIDEO-LINK - HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

THE COURT:

1. On his own petition, the appellant was made bankrupt on 4 September 2000. The respondent was appointed trustee of his estate. As a result of intervention by the respondent the appellant’s discharge has been delayed until 5 September 2008. The appellant applied to this Court pursuant to s 179 of the Bankruptcy Act 1966 (Cth) (the “Act”) for removal of the respondent as trustee. That application was refused at first instance. This is an appeal from that decision. Each party appeared on his own behalf.

2. In support of his application the appellant filed an affidavit in which he swore that the respondent had blackmailed him and that he believed that the respondent ‘may have engaged in dodgy tactics’.  The allegations arose out of meetings between the appellant, the respondent and their solicitors.  The meetings took place on 18 November 2003 and 25 February 2004.  The appellant claimed that at the first meeting, the respondent said that if the former did not offer to pay a substantial amount of money to the latter, then he would ‘put the heat up and refer me to the police’.  He also claimed that at the second meeting the respondent said that…