Yee Ping Tsui, Raymond v Donnelly, Max

[1995] FCA 1162

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 740 of 1995
  )
GENERAL DIVISION                  )

BETWEEN:RAYMOND YEE PING TSUI

First Applicant

BABSARI PTY LIMITED

Second Applicant

AND:MAX CHRISTOPHER DONNELLY

Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    6 DECEMBER 1995

REASONS FOR JUDGMENT

By motion, Mr Wong applies to be joined as a respondent to an application for review brought by Raymond Yee Ping Tsui and Babsari Pty Limited.  The application seeks a review of a decision made by Mr Donnelly not to admit in proof debts of the respective applicants.  It seems that Mr Wong wishes to have the bankruptcy annulled on the basis that he will have paid all the provable debts from his estate.

To this end, an application was made by him to this Court which was heard by Sackville J on 18 August 1995 arising out of what was said to be the foreshadowed refusal of Mr Donnelly to issue a certificate under s153A of the Bankruptcy Act 1966 (Cth). Mr Donnelly's refusal, if there were such a refusal, depended upon the fact that a dispute had arisen as to the debts of the applicants which had not at that stage been admitted to proof.

It is accepted, at least for present purposes, that Mr Wong is able to pay all the debts of the estate admitted in proof other than the two presently in dispute.

It is in these circumstances that Mr Wong seeks to be joined.  He says that he has a real interest over and above the interest of a bystander in the proceedings in that if the proofs of debt are rejected, he will be then able to apply for an annulment of the bankruptcy.  If on the other hand they are accepted, it would seem that his ability to obtain an annulment would be frustrated.

The application is opposed by the two creditors and also by Mr Donnelly.  Two matters are put in opposition and they are related.  The first is that the joinder of Mr Wong would add to costs.  The second is that all Mr Wong would be able to do is to restate the arguments which the trustee in any event would put on behalf of all creditors.

I think that both of these arguments, while of some substance, can be mitigated by appropriate steps being taken at the trial.  It is a matter for the parties to discuss and ultimately for the judge hearing the matter to determine, but it may very well be simpler if Mr Wong takes the running of the case, in that the material upon which the trustee must rely is material which comes from Mr Wong in any event.

Secondly, the intervention of Mr Wong cannot have the result that witnesses could be cross-examined a second time on the same general subject matter or that submissions should be able to be repeated.  Ultimately the matter is one of weighing up a legitimate interest on the part of Mr Wong on the one hand against the potentiality for costs to increase on the other.

In the circumstances, I think that the case is one where Mr Wong should be given leave to be joined as a party.  Accordingly, I order that he be joined as a respondent to the application.

I certify that this and the
preceding two (2) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date:  12 March 1996

Solicitors for First and     Colin Biggers & Paisley

Second Applicants:           

Solicitors for Respondent:    Holmes & Bevan

Counsel & Solicitors         B Debuge instructed by

for Mr Wong:                McLaughlins

Date of Hearing:            6 December 1995

Date Judgment Delivered:     6 December 1995