Draper v Tragauer

[2004] FCA 1710

Federal Court of Australia|1989-07-12|Before: Adam P, Mansfield J

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Source facts

Court

Federal Court of Australia

Decision date

1989-07-12

Before

Adam P, Mansfield J

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

introduction 1 The appellants appeal from a decision and order of a Federal Magistrate given on 22 July 2004. By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the appeal is to be heard by a single judge. 2 The appeal is from an order made on 22 July 2004 and amended on 4 August 2004 that: '1. Paragraph 1 - 13 inclusive of the amended application filed on behalf of the applicants on 9 March 2004 be dismissed as disclosing no reasonable cause of action pursuant to provisions of R 13.10 of the Federal Magistrates Court Rules. 2. That the applicants be given leave to further amend their application within 14 days of the date hereof by seeking any alternative relief as they may be advised.' 3 It is apparent from that order that, although the Court determined to summarily dismiss the application as disclosing no reasonable cause of action, it did not intend for that order to bring the proceedings to an end. Rule 13.08 of the Federal Magistrates Court Rules 2001 (Cth) permits the Court, where a proceeding is not wholly disposed of by a judgment or dismissal, to give directions for the further conduct of the proceeding. The order seems to have had the effect of dismissing the application as a pleading but not of bringing the action itself to an end. The parties have proceeded on that basis. 4 In fact the appellants, pursuant to the leave then given, on 5 August 2004 filed and served a further amended application seeking various declarations, in substance of two kinds: (1) to have determined that at all material times the beneficial interest in the whole of the property known as Lot 202 Heaslip Road, MacDonald Park (the MacDonald Park property) has vested in the applicant Barbara Olive Draper (Ms Draper), and (2) an order annulling the bankruptcy of the applicant Keith Lawrence Draper (Mr Draper) pursuant to s 153B of the Bankruptcy Act 1966 (Cth) (the Act).

[2]

[3]

the application which was dismissed 6 The amended application which was subject to the dismissal order of 22 July 2004 related to the Marleston property, to the MacDonald Park property, to the bankruptcy of Mr Draper, and (it appears) to some other conduct. The 13 orders for relief sought were as follows: '1. That the Official Receiver be made liable on the negligence and damages in dealing with the property situated at 5 George Street, Marleston, in South Australia Volume 3606 Folio 1 subject to a Mortgage No. 6402318 in favour of the National Australia Bank Limited and an order of the Federal Court No. 6676698 dated 27th January, 1989, which was superseded by a later order inserted thereon the Title Deeds. 2. That the Official Receiver is Personally liable for a $40,000 loss for refusing an offer by the applicants to sell the property and making a counterclaim that he wanted 100% of the proceeds of the sale and thus not being able to get in the assets of the Bankrupt to pay off the Bankrupts [sic] Debts. 3. The Official Receiver is personally liable for a loss of $41,114.75 additional to the above (2 above) because it is alleged that he interfered and conspired with the National Bank of Australia in order that they could put a foreclosure on the property. Before the applicants could sell the property Being [sic] the amount that was overstated in the Mortgage by the National Australia Bank 4. That the Official Receiver did not investigate the assets of the Bankrupt concerning the property at 5 George Street, Marleston, in South Australia in order to assess the extent of the assets of the Bankrupt in order to pay off the Bankrupts [sic] Debts and should be held personally liable for such negligence. 5. That the Official Receiver was negligent in not safeguarding B. O. Draper's share of the property at 5 George Street Marleston, in South Australia and should be held personally liable for negligence. 6. That the Registrar should not have accepted the petition for Bankruptcy from the Australian Society of Accountants as at the time of the petition the debt was Secured by a Mareeba [sic] on 5 George Street Marleston, in South Australia 7. That the Bankruptcy was maliciously procured by the Australian Society of Accountants as they procured on a secured debt 8. That the Official Receiver condoned the actions of the Australian Society of Accountants and should have refused to Register the Bankruptcy 9. That the Bankruptcy should be annulled under Section 154(1)(a) 10. That the Trustee in Bankruptcy should be held personally liable for condoning the illegal action on lot 202 Heaslip Road, MacDonald Park, in South Australia. 11. That the Bankrupt Estate of Keith Lawrence Draper should be immediately wound up 12. That the official Receiver nor did the Trustee in Bankruptcy ever have [sic] the right to a vesting order on the property situated at lot 202 Heaslip Road MacDonald Park in South Australia 13. A declaration pursuant to Section 30 of the Bankruptcy Act 1966 that the orders sought from 1-12 above against the respondents be given in the Applicants [sic] favour and that the interim orders given making the respondents comply to the applicants [sic] request'

[33]

(1) the further amended application filed on 5 August 2004 is the document currently before the Federal Magistrates Court and listed for hearing on 14 February 2005; (2) that document seeks orders relating to the nature of the bankrupt estate of Mr Draper, namely whether his bankrupt estate included any equitable interest in the MacDonald Park property at the time of the sequestration order; (3) that document may be read as pursuing the alternative claim, if Mr Draper's bankrupt estate included half the equitable interest in the MacDonald Park property, that on some basis the trustee should account to Ms Draper for monies paid by her towards the improvement of the MacDonald Park property and towards the payment of outgoings including mortgage capital and interest payments on it before any present entitlement to one half of the MacDonald Park property; (4) that document may also be read as pursuing the further alternative claim, if Mr Draper's bankrupt estate included half the equitable interest in the MacDonald Park property, that on some basis the conduct of the trustee entitles the appellants to an order that the trustee should be estopped from asserting that entitlement; (5) those claims are, in reality, made against the Official Trustee so the Official Trustee should be substituted as the first respondent in lieu of the Official Receiver; (6) those claims involve Mr Carter only because he is now the trustee of the bankrupt estate of Mr Draper and so effective orders can be made (if any of those claims succeed); Mr Carter is not alleged to have been involved in the conduct giving rise to those claims; (7) the further amended application also seeks an order annulling the sequestration order made in respect of the estate of Mr Draper, but unless there are further and different grounds for pursuing that order it would seem that claim has been summarily dismissed by the learned Magistrate and his decision has been upheld by this judgment on appeal; (8) in addition, if it is sought to annul the sequestration order, it would be necessary for the petitioning creditor to be served with the application: see r 35.03 of the Federal Magistrates Court Rules; (9) the appellants also seek to amend the further amended application by adding what is par 8 of the documents called further amended application filed on 20 August 2004 and further further amended application dated 24 November 2004, and they will need leave to do so; (10) the application for leave to amend the further amended application of 5 August 2004 to pursue claims for damages will require consideration, inter alia, of whether the Federal Magistrates Court has jurisdiction to entertain those claims or either of them in its accrued jurisdiction (the claim arising from conduct in relation to the Marleston property will not necessarily fall into the same category as that in relation to the MacDonald Park property); (11) the application for leave to amend the amended application may also involve consideration of whether the affidavits of the appellants (or other material adduced by them) fairly puts the Official Trustee on notice as to the case to be met and presents an arguable case for the claims or either of them succeeding; (12) the claims so sought to be made by the proposed amendment are against Official Trustee only, and Mr Carter is not alleged to have been involved in the conduct giving rise to those claims; (13) the claims so sought to be made by the proposed amendment involve claims that the Official Trustee should pay damages - (a) in respect of conduct in relation to the MacDonald Park property, and (b) in respect of conduct in relation to the Marleston property.

Draper v Tragauer

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