Trouton v Official Receiver in Bankruptcy (No.2)

[2014] FCCA 2818

FEDERAL CIRCUIT COURT OF AUSTRALIA

TROUTON v OFFICIAL RECEIVER IN BANKRUPTCY (No.2) [2014] FCCA 2818

Catchwords:
PRATICE AND PROCEDURE – Application to re-open case and lead further evidence – application refused.

Legislation:  

Bankruptcy Act 1958, s.153B(1)

Applicant: CHRISTINE NICOLE TROUTON

Respondent: OFFICIAL RECEIVER IN BANKRUPTCY

First Supporting Creditor: SUBWAY SHOE DIFFUSION PTY LTD

Second Supporting Creditor: GEORGE ANTHONY CHEBIB

File Number: BRG 187 of 2014

Judgment of: Judge Jarrett

Hearing date: 18 November 2014

Date of Last Submission: 18 November 2014

Delivered at: Brisbane

Delivered on: 18 November 2014

REPRESENTATION

Solicitor for the Applicant: Ms Rosen

Solicitors for the Applicant: Rosen Lawyers

There being no appearance by the Respondent

Solicitor for the First Supporting Creditor: Ms Kipps

Solicitors for the First Supporting Creditor: Collins & Stephens Lawyers

Solicitor for the Second Supporting Creditor: Mr Cope

Solicitors for the Second Supporting Creditor: McKays Solicitors

ORDERS

1. The interlocutory application be dismissed.

2. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 187 of 2014

CHRISTINE NICOLE TROUTON

Applicant

And

OFFICIAL RECEIVER IN BANKRUPTCY

Respondent

SUBWAY SHOE DIFFUSION PTY LTD

First Supporting Creditor

GEORGE ANTHONY CHEBIB

Second Supporting Creditor  

REASONS FOR JUDGMENT

ex parte

1. This is an application to lead fresh evidence or further evidence in relation to an application to annul a bankruptcy that has already been heard and the judgment in respect of which is presently reserved.  The annulment application is itself relatively unique in that the bankrupt seeks to have her bankruptcy annulled notwithstanding that the bankruptcy came about because she presented her own petition in bankruptcy to the Official Receiver. 

2. Her argument on the annulment application is that she was so deprived of legal capacity at the time she presented her debtor’s petition that the petition ought never have been presented. She says that if the Court is satisfied about that, then the Court should annul the bankruptcy. It has power to do so under s.153B(1) of the Bankruptcy Act1958. 

3. By this interlocutory application, Ms Trouton seeks to place further evidence before the Court.  The further evidence concerns what the applicant herself describes as a “delicate matter”. 

4. To understand that, it is necessary to understand something more of the facts of the case.  One of the parties who appeared to oppose the annulment application is a Mr George Chebib.  He is a person who has in the past been in a de facto relationship it seems, with Ms Trouton.  There were proceedings between them in the Supreme Court in relation to their property interests.  The proceedings were apparently determined by a judge of that court and an application for a stay of the judgment pending an appeal by Ms Trouton was refused by a judge of the Court of Appeal. 

5. In those proceedings the applicant was legally represented.  The evidence that she now wishes to place before me is to the effect that whilst she was so represented, the solicitor that was representing her was taking advantage of his position and imposing upon her in a sexual way so that her will, she says, was overborne.  As Mr Rosen, the solicitor who appears for the applicant, points out, the evidence is really not determinative of anything; it is really better characterised as grist for the mill.  They are my words, not his. 

6. The re-opening of an application once the evidence has been closed is an exercise of judicial discretion.  The discretion is ordinarily exercised in favour of reopening where, taken as a whole, the justice of the case favours a grant of leave to reopen.

7. Two things are usually said to be important.  The first is that the evidence is indeed fresh, that is, something that has arisen since the close of the applicant for re-opening’s case, or there is some other explanation for a failure to lead the evidence which was otherwise available.  The evidence must be relevant. 

8. The application in this case fails on both counts.  There is no real explanation, having regard to the applicant’s affidavit relied on in this application, which I have read, which provides any proper basis for suggesting that the evidence that she now wishes to lead could not have, or should not have, been led at the hearing of the application.

9. Secondly, it seems to me that the evidence is entirely irrelevant.  What is important for the annulment application is whether the applicant was deprived of legal capacity to such an extent that she ought not have presented her debtor’s petition. 

10. I am not sure how the circumstances about which she now wishes to give evidence bear on that application or the issues to be determined in it.  The relevance is not apparent and it was not explained. 

11. For those reasons, the application to reopen and lead further evidence is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 18 November 2014.

Associate: 

Date:         3 December 2014