Yap v Granich & Associates

[2002] FMCA 284

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YAP v GRANICH & ASSOCIATES [2002] FMCA 284

BANKRUPTCY – Application for annulment pursuant to s.153B of the Bankruptcy Act 1966 – matters already litigated – res judicata.

PRACTICE AND PROCEDURE – Abuse of process – Rule 13.10 Federal Magistrates Court Rules – application dismissed – court able to rely on Rule on own motion.

Bankruptcy Act 1966, s.153B

Applicant: CHENG SEE YAP

Respondent: GRANICH & ASSOCIATES

File No: WZ 194 of 2002

Delivered on: 30 October 2002

Delivered at: Perth

Hearing Date: 30 October 2002

Judgment of: McInnis FM

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr B Dodd

Solicitors for the Respondent: Mallesons Stephen Jacques

ORDERS

1. The application be dismissed.

2. That the Applicant pay the Respondent's costs pursuant to Order 62 of the Federal Court Rules in accordance with the Federal Court scale.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ194 of 2002

CHENG SEE YAP

Applicant

And

GRANICH & ASSOCIATES

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. Before the court is an amended application pursuant to s.153B of the Bankruptcy Act 1966 (the Bankruptcy Act). The amended application was filed on the fifth day of August 2002. The matter had commenced by way of an application filed earlier in the Federal Court of Australia on 5 July 2002. The proceedings were transferred to the Federal Magistrates Court by order of the Federal Court on 2 September 2002.

2. In the application which is now, as I have indicated, amended and filed on 5 August 2002, Yap Cheng See, (the applicant), seeks an annulment of a sequestration order and does so in reliance upon s.153B of the Bankruptcy Act.

3. The court in addition to noting the amended application to which I shall refer briefly has received a number of documents from both parties and for the sake of completeness it is appropriate that I indicate that the court has taken into account and considered those documents.  They include a significant and voluminous affidavit from the applicant comprising some 396 pages of an affidavit sworn 5 July 2002 by the applicant.  In addition the applicant has relied upon a further affidavits sworn by her on the 26th day of July 2002 and on 29 July 2002.  The applicant has relied upon submissions in support of the application for annulment filed 12 August 2002, further submissions which are entitled "Applicant's further submissions to establish respondent's fraud in support of application seeking annulment of bankruptcy" filed 30 August 2002, a further document entitled "Applicant's submissions pursuant to Registrar Jan's direction given on 2 September 2002 in support of application seeking annulment of bankruptcy and damages", and then a further affidavit in support of the application for annulment of bankruptcy and damages sworn 4 October 2002, and a further submission in support of the application seeking annulment of bankruptcy and damages filed 10 October 2002.

4. The last two of those documents are documents which were filed out of time in the sense that the order made…