Vella v Jameson

[2001] FCA 307

FEDERAL COURT OF AUSTRALIA

In the matter of Jameson; Vella v Jameson [2001] FCA 307

IN THE MATTER OF KATHARINE ANNE JAMESON

CHARLE VELLA v KATHARINE ANNE JAMESON
N 7096 OF 2001

LINDGREN J
20 MARCH 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7096 OF 2001

IN THE MATTER OF KATHARINE ANNE JAMESON

BETWEEN:	CHARLE VELLA APPLICANT
AND:	KATHARINE ANNE JAMESON RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	20 MARCH 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

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 7096 OF 2001

IN THE MATTER OF KATHARINE ANNE JAMESON

BETWEEN:	CHARLE VELLA APPLICANT
AND:	KATHARINE ANNE JAMESON RESPONDENT

JUDGE:	LINDGREN J
DATE:	20 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT 

1. Mr Vella, who appears unrepresented, has filed an application for leave under subs 58(3) of the Bankruptcy Act 1966 (Cth) (“the Act”), to “commence” “a legal proceeding” against Katherine Anne Jameson (“Ms Jameson” – Mr Vella misspelt Ms Jameson’s name in the title to the proceeding), in respect of a “provable debt”. The application does not identify the “legal proceeding” Mr Vella wished to “commence”.

2. Ms Jameson has been called outside the court-room but does not appear.  There is on the Court file an affidavit by Mr Vella as to service of the application upon her.  I need not concern myself with the adequacy of service, because, as explained below, the application is misconceived and must be dismissed in any event. 

3. Ms Banfield of Sally Nash & Co appears for the Official Trustee in Bankruptcy as trustee of the bankrupt estate of Ms Jameson.  The Official Trustee has filed a notice of appearance stating an intention to appear and submit to the orders of Court.  Ms Banfield has sought leave to be excused, but has stayed a little while to assist the Court this morning.

4. The proceeding arises out of money lent by Mr Vella to Ms Jameson.  I need not give a detailed account of the facts, because there is no dispute that the debt is owed. According to Mr Vella he lent Ms Jameson $3,050.00 on 10 December 1997 and $12,700.00 on 30 April 1998.  Some payments were made.  Apparently, Mr Vella sued Ms Jameson in the Local Court at Penrith in proceeding 1920 of 1999.  Apparently he obtained a judgment and an instalment order was made for payment by Ms Jameson of $75 per week. 

5. But on 28 August 2000 Ms Jameson presented a debtor’s petition, which was accepted by the Official Receiver on that day.  Her bankruptcy was numbered NSW 3879/0/2 (C40).  Ms Jameson acknowledged in her statement of affairs that she owed Mr Vella $14,568.64.  According to her statement of affairs, he is her only creditor.

6. Mr Vella is aggrieved by the fact that this resort to the procedure of bankruptcy has defeated Ms Jameson’s obligation to pay the instalments.

7. The ground relied on by Mr Vella is that Ms Jameson was in fact not insolvent, and ought not to have presented a debtor’s petition. If this is correct, Mr Vella should be applying for annulment of the bankruptcy under s 153B of the Act. He would have to satisfy the Court that the debtor’s petition ought not to have been presented or ought not to have been accepted by the Official Receiver, and the Court would retain a discretion as to whether to make an order annulling the bankruptcy. I have tried to make it clear to Mr Vella that I can give him no assurance whatever as to whether that proceeding would succeed but that it is clear that the present proceeding is misconceived and must be dismissed.

8. Mr Vella states that if he and Ms Jameson could meet with an independent third person the differences between them may well be amicably resolved.  If this is correct, it would be desirable that such a meeting take place, but it is a matter with which I cannot become involved.  It may be that things would be said on behalf of Ms Jameson, who is not in Court this morning, against that course of action. 

9. The Court orders that the application be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             23 March 2001

The Applicant appeared in person.
There was no appearance for the Respondent.
Solicitor for the Official Trustee in Bankruptcy:	Ms N Banfield of Sally Nash & Co
Date of Hearing:	20 March 2001
Date of Judgment:	20 March 2001