Woodgate v Nissen
[2010] FMCA 746
•14 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WOODGATE v NISSEN & ORS | [2010] FMCA 746 |
| BANKRUPTCY – Practice and procedure – trustee’s application to recover property – consent application for transfer to Federal Court – consideration of value of interests involved, complexity of issues, and case‑management practices – transfer ordered. |
| Bankruptcy Act 1966 (Cth), ss.120, 121, 128B, 128C Federal Court Rules (Cth), O.82, r.1 Federal Magistrates Act 1999 (Cth), ss.39(2)(a), 39(3) Federal Magistrates Court Rules 2001 (Cth), rr.8.02(4), 8.02(4)(e) |
| Applicant: | GEOFFREY GILES WOODGATE |
| First Respondent: | NATHAN NISSEN |
| Second Respondent: | GEORGIA NISSEN |
| Third Respondent: | DANIEL NISSEN |
| File Number: | SYG 1421 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 14 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Wood |
| Solicitors for the Applicant: | Garland Hawthorn Brahe |
| Counsel for the Respondents: | Mr J B Conomy |
| Solicitors for the Respondents: | Meerkin & Apel |
ORDERS
The time provided in order 3 made on 6 July 2010 is extended to 1 October 2010.
The proceeding be transferred to the Federal Court pursuant to s.39(2)(a) of the Federal Magistrates Act 1999 (Cth).
Direct under Federal Court Rules O.82 r.1 that the applicant file this order in the New South Wales Registry of the Federal Court within 7 days.
Order that the parties’ costs in this proceeding shall be their costs in the Federal Court proceeding.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1421 of 2010
| GEOFFREY GILES WOODGATE |
Applicant
And
| NATHAN NISSEN |
First Respondent
| GEORGIA NISSEN |
Second Respondent
| DANIEL NISSEN |
Third Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This judgment considers an application supported by all parties, that the proceedings be transferred to the Federal Court.
The applicant is trustee of the bankrupt estate of Mr Nathan Nissen. He seeks relief against Mr Nissen, his wife and son, under sections 120, 121, 128B and 128C of the Bankruptcy Act 1966 (Cth) in relation to claimed assets of the estate. The application seeks an order for the payment of amounts exceeding $1 million, declarations as to equitable interests in a property at Toorak, Victoria, and consequential orders. A 99 paragraph statement of claim filed with the application, suggests that there will be a need to unravel numerous transactions involving, inter alia, a superannuation fund, and to determine the interests of the bankrupt with other persons claiming interests in joint accounts and other property. It may also be necessary to examine Mr Nissen’s substantial share trading business to consider when he first became insolvent.
The proceedings were commenced on 29 June 2010. They were first listed before a Registrar on 6 July 2010, when consent orders in relation to particulars and the filing of a defence were ordered. A request for particulars was filed, but the applicant is in default in responding to it, and no defence has yet been filed.
The application was again in the Registrar’s list today, and was referred to me at the request of both parties, who invite the Court to transfer the matter to the Federal Court. A supporting submission has been filed by counsel for the respondents, who seem to be the moving party for the transfer, but it is supported by the trustee.
Although pleadings have not yet closed, I shall assume that a hearing will address numerous issues of fact, some of them involving complexity of law or factual assessment, which may or may not be simplified by the efforts of the legal practitioners involved. A number of witnesses will be required, apparently resident in Sydney and Melbourne. Extensive discovery is agreed to be necessary from both sides of the litigation, and the parties project a five day trial. It is impossible for me at this stage to assess whether this estimate is accurate, but on general experience it may be a significant under‑estimate.
I am obliged to consider the matters set out in s.39(3) of the Federal Magistrates Act 1999 (Cth) and r.8.02(4) of the Federal Magistrates Court Rules 2001 (Cth).
There is no evidence of any “associated matter” pending in the Federal Court.
Although it is suggested by counsel that a “question of general importance” arises concerning rights in a joint account, their submissions have not persuaded me that any such question is involved in the present case. There may be a multiplicity of issues of fact and law involved, but they do not appear to me to be beyond the capacities of this Court to address.
In relation to the speed and cost of a hearing, I am unaware of the present listing commitments of the Federal Court in Sydney or Melbourne, and can form no judgment as to that criterion.
It is my impression that it is unlikely that the proceedings would be heard quicker or at less cost if they were transferred to the Federal Court.
It may be that there are “particular procedures appropriate for the class of proceedings” which are more routinely followed in the Federal Court than this Court. In particular, Federal Court case‑management might give more attention to the simplification of accounting issues, the giving of discovery, and the more thorough pre‑trial preparation of the matter, than is usually necessary in this Court.
The last consideration might point to my exercising my power to transfer. The apparent value of the interests sought to be recovered by the applicant, might justify more expensive interlocutory procedures.
On balance of all the considerations, I am not completely persuaded that this matter should not stay in this Court.
However, considering the above matters, and giving substantial weight to the consideration in r.8.02(4)(e), being “the wishes of the parties”, I am prepared to make the order sought by the parties.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 28 September 2010
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