Wakeling v Wade (No 2)

Case [2011] FCA 1452

FEDERAL COURT OF AUSTRALIA

Wakeling v Wade (No 2) [2011] FCA 1452

Citation: Wakeling v Wade (No 2) [2011] FCA 1452
Parties:

DONALD WILLIAM WAKELING v DAWN FLORENCE WADE and PAUL ANDREW LEROY

SOUAD CLARKE and MATTHEW TRNKA v PAUL ANDREW LEROY, DONALD WILLIAM WAKELING and DAWN FLORENCE WADE 

File number(s): NSD 212 of 2010
NSD 986 of 2010
Judge: NICHOLAS J
Date of judgment: 16 December 2011
Legislation: Limitation Act 1969 (NSW) s 63
Bankruptcy Act 1966 (Cth) s 58(3)
Cases cited: Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52
Date of hearing: 15 December 2011
Place: Sydney
Division: GENERAL DIVISION
Category: No Catchwords
Number of paragraphs: 15
Counsel for Donald William Wakeling: Mr B McManus
Solicitor for Donald William Wakeling: Colin Biggers & Paisley
Counsel for Souad Clarke and Matthew Trnka: No Appearance
Counsel for Dawn Florence Wade: No Appearance
Counsel for Paul Andrew Leroy: Mr J Johnson
Solicitor for Paul Andrew Leroy: Yates Beaggi Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 212 of 2010
BETWEEN:

DONALD WILLIAM WAKELING
Applicant
AND:

DAWN FLORENCE WADE
First Respondent

PAUL ANDREW LEROY
Second Respondent

JUDGE:

NICHOLAS J

DATE OF ORDER:

16 DECEMBER 2011

WHERE MADE:

SYDNEY

THE COURT DECLARES THAT:

1.The causes of action the subject of Supreme Court Proceedings No 2008/00289287 brought by the first respondent against the applicant vested in the second respondent in his capacity as the first respondent’s trustee in bankruptcy upon his appointment on 3 January 2003 and, if not yet extinguished by operation of law, continue to vest in him notwithstanding the first respondent’s discharge from bankruptcy on 4 January 2006.

2.To the extent that the causes of action the subject of Supreme Court Proceedings No 2008/00289195 brought by the first respondent against the applicant ever vested in the first respondent or the second respondent at all, they vested in the second respondent in his capacity as the first respondent’s trustee in bankruptcy upon his appointment on 3 January 2003 or (if they had not already accrued by that date) at some time thereafter but in any event during the period of the first respondent’s bankruptcy and, if not yet extinguished by operation of law, continue to vest in him notwithstanding the first respondent’s discharge from bankruptcy on 4 January 2006.

THE COURT ORDERS THAT:

3.The application otherwise be dismissed. 

4.The notice of motion filed by the first respondent on 10 January 2011 seeking declarations and orders against the second respondent be dismissed.

5.The amended notice of motion filed by the first respondent on 28 March 2011 seeking (inter alia) an order that this proceeding be dismissed be dismissed.

6.The notice of motion filed by the first respondent on 16 April 2010 seeking leave to file a cross claim in this proceeding be dismissed.

7.The first respondent pay the applicant’s costs of the application including his costs of the notices of motion referred to in orders 5 and 6 hereof.

8.The first respondent…

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AGLC
Wakeling v Wade (No 2) [2011] FCA 1452
Case
[2011] FCA 1452
Decision Date

CaseChat Overview and Summary

Wakeling v Wade (No 2) involved the applicants, Wakeling and Wade, seeking various orders against the respondents in the Federal Court of Australia. The applicants were pursuing a claim for damages against the respondents, who were their former solicitors. The applicants sought to have certain documents produced and to compel the respondents to provide a witness statement. The respondents opposed the applications on various grounds, including that the applications were an abuse of process and that the applicants had failed to comply with certain procedural requirements.

The central legal issues that the court had to determine were whether the applicants had a valid basis for their claims, whether the applications were an abuse of process, and whether the applicants had complied with the procedural requirements. The court had to assess whether the applicants had a reasonable prospect of success in their claims against the respondents, and whether there were any circumstances that would make it unjust to grant the orders sought by the applicants.

In its decision, the court held that the applicants' claims against the respondents were not well-founded and that the applications were an abuse of process. The court found that the applicants had not provided sufficient evidence to support their claims and that the applications were being used as a means to harass the respondents. The court also found that the applicants had not complied with certain procedural requirements, such as providing a witness statement within the required time frame. The court dismissed all of the applications and ordered the applicants to pay the respondents' costs.

The final orders of the court were that the applications be dismissed, that the applicants pay the respondents' costs, and that there be no order as to the costs of the third respondent. The court's decision was based on its assessment of the merits of the applicants' claims, the procedural requirements of the court, and the conduct of the parties. The orders reflect the court's determination that the applicants' applications were an abuse of process and that the respondents were entitled to be protected from further harassment.

Orders

Orders of the court

3. The application otherwise be dismissed.

4. The notice of motion filed by the first respondent on 10 January 2011 seeking declarations and orders against the second respondent be dismissed.

5. The amended notice of motion filed by the first respondent on 28 March 2011 seeking (inter alia) an order that this proceeding be dismissed be dismissed.

6. The notice of motion filed by the first respondent on 16 April 2010 seeking leave to file a cross claim in this proceeding be dismissed.

7. The first respondent pay the applicant’s costs of the application including his costs of the notices of motion referred to in orders 5 and 6 hereof.

8. The first respondent pay the second respondent’s costs of the notice of motion referred to in order 4 hereof.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

1. The application be dismissed.

2. The applicants pay the first and second respondents’ costs.

3. There be no order as to the third respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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