Re Parker, L.J. v. Ex parte Nicholls, B.A. & Anor [1994] FCA 576

Federal Court of Australia|1994-10-05|Before: Sackville J

IN THE FEDERAL COURT OF AUSTRALIA ) BANKRUPTCY DISTRICT ) No. NB1486 of 1992 OF THE STATE OF NEW SOUTH WALES )

CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 5 OCTOBER 1994

This 12s a rather unusual application, giving rise to considerable difficulties. Some of the difficulties are associated with the fact that the applicant was unrepresented. Others arise from the somewhat complicated facts, involving orders made by the Family Court of Australia, and the

in certificate of tatle Folio Identifier 49/751255, (Lot 49 Budgong Rd, Budgong) from [sic] orders made

[sic] in favour of Lorraine Ann Parker." The matter seems to have come before the Court first on Friday 30 September 1994, when it was stood over until the Bankruptcy List on 4 October 1994. The applicant was directed to serve the application and her supporting affidavit on the Insolvency and Trustee Service. This was done. Mr Freidman appeared at the adjourned hearing on behalf of the Service and (as will be

As one might expect with an unrepresented applicant, the precise nature of the relief sought was not entirely clear. Nonetheless, it was plain enough that the applicant's principal grievance was that orders of the Family Court had deprived her (or might deprive her) of her interest in the Budgong property, referred to in the application. She claimed not to have had any or any substantial opportunity to be heard in the Family Court before it made orders adversely affecting her interest in the land. I took the applicant, at the hearing on 4 October 1994, to be seeking interim relief to

In the initial application, the respondent was named as Charles Bowden. This was apparently intended as a reference to Charles William Butlier-Bowdon, a Realisation Officer attached to the office of Insolvency & Trustee Service Australia. Mr Freidman properly drew my attention to the fact

that, if it were intended to join the bankrupt estate of Mr Parker in the proceedings, the appropriate respondent was the Official Trustee in Bankruptcy. Mr Freidman, without conceding that the applicant was entitled to any relief, either on an interim or final basis, consented to the official trustee being substituted as respondent, in lieu of Mr Butler-

It should be noted that, although the application sought relief in relation to orders made in the Family Court in favour of Mrs Parker, the latter was not joined as a party in the proceedings instituted by the applicant. The evidence disclosed that the registered proprietor of the Budgong land, as late as 8 a.m. on 4 October 1994, was Norman William Faulks. He also was not joined as a party to the application

The applicant relied on a short affidavit sworn in support of her application. In addition, she read an affidavit, apparently sworn in April 1993, prepared in contemplation of an application by her for leave to intervene in Family Court proceedings between the bankrupt and his wife, Lorraine Anne Parker. Mr Freidman very fairly took no point about any irregularity in relying upon an affidavit prepared for, but not read, in other proceedings. For his part, Mr Freidman tendered certain documents, including orders made by the Family Court in the proceedings between Mr Parker and Mrs

Parker. I do not think it necessary to recount the facts in detail. It is important to bear in mind that the account given by the applicant has not been tested, and that some statements made by her were not by way of sworn evidence but rather in the form of sworn statements from the Bar table. If the matter is to proceed further, it will be necessary for additional evidence to be adduced and, perhaps, for cross-examination to

Be that as it may, the sequence of events, as I understand it

e On 9 May 1991 Mr Parker (who was not then a bankrupt) was ordered by the Family Court to pay $30,000 to his wife within a period of one month from the date of the order. In default of compliance Mr Parker was directed to execute a transfer of the Budgong property to Mrs Parker. In the meantime, Mr Parker was restrained from disposing of or dealing with the property. Presumably at that stage Mr Parker was the registered proprietor of the

e On 26 November 1991, Mr Parker executed a transfer of the Budgong property to Norman William Faulks. This transfer may have been in breach of the earlier orders made by the Family Court, although I am not in a position to make any

finding about whether this was the case or not. On 28 May 1992, Mr Parker became bankrupt, apparently on

On 2 July 1992, the applicant entered into a contract for the purchase of the Budgong property for what seems to have been the modest price of $22,500. The vendor was expressed to have been Norman William Faulks. The applicant says that she paid Mr Faulks a deposit of $2,500 in cash some time before July 1992. She claims to have paid the balance on the same day as the contract was executed. On the same day she received a transfer from Mr Faulks. The transfer was subsequently stamped. The applicant said that she only learned in March 1993 that the transfer to her had not been registered, apparently because of a request made by Mrs Parker to endorse on the register the terms of certain interim orders made in the Family Court in July 1992. These included orders restraining Mr Faulks from disposing of or dealing with

On 15 March 1993, the Family Court ordered that the transfer dated 26 November 1991, between Mr Parker and Mr Faulks, be set aside. (An order was also made on that date that a transfer relating to another property also executed on 26 November 1991 in favour of Mr Faulks,

On 23 September 1994, the Family Court ordered, pursuant to s.84 of the Family Law Act 1975, that the Registrar of the Court be appointed to execute a transfer of the Budgong land "in the name of Leslie James Parker as transferor to Lorraine Anne Parker as transferee in compliance with the [court order of 9 May 1991]". The Registrar-General was ordered, pursuant to s.138 of the Real Property Act 1900 (NSW), to issue a new edition of the certificate of title to the land. (Presumably the Family Court exercised cross-vested jurisdiction for the

purpose of directing an order to the Registrar-General

The applicant acknowledged from the Bar table that she was in the Family Court on 23 September 1994, but claimed that she had not been given an adequate opportunity by the Court to put her case on that day. Certainly, as far as the evidence goes, the events of that day are far from clear, It is, however, clear that the applicant swore an affidavit, as long ago as April 1993 and with the benefit of legal advice, with a view to intervening in the Family Court proceedings. As I have indicated, the evidence did not explain why that application was not pressed or, if pressed, why it did not succeed. I should note that Mr Freidman informed me that the Official

Trustee has played no part in the Family Court proceedings.

I have very considerable reservations as to whether the applicant has shown enough, at this interlocutory stage, to

justify concluding that there is a serious issue to be tried as to whether she was indeed denied a fair hearing by the Family Court. I appreciate that the applicant gave sworn evidence that she received no notice of the Family Court proceedings at which orders were made. The applicant put forward no sworn evidence as to the events of 23 September 1994. Her statements from the Bar table were consistent with the Family Court according her an opportunity to put her case, albeit without the benefit of legal representation and in a manner which (whether justifiably or not I cannot say) she regarded as unsympathetic and unhelpful to her as an unrepresented person. I have already referred to the evidence relating to the foreshadowed application for intervention before the Family Court in 1993. Of course, it may be that the applicant, if properly advised, could readily adduce evidence showing that she was denied procedural fairness at the times when the Family Court made orders adversely affecting her interest in the Budgong property. If she were in fact denied an opportunity to be heard in relation to such orders, it may be difficult to resist the conclusion that she should be permitted to put her case, provided that the

However, even if the evidence were thought to establish a serious issue to be tried on the question of procedural fairness, it does not seem to me that the applicant could be assisted by any orders, interlocutory or otherwise, obtained against the Official Trustee alone. The orders of the Family

Court are operative, unless and until set aside. Those orders require the Registrar of the Family Court (who was not a party to these proceedings), to execute a transfer of the Budgong land in the name of Mr Parker in favour of Mrs Parker (who is also not a party to these proceedings). I have previously noted that the registered proprietor of the Budgong property remains Mr Faulks and he, too, is not a party to these proceedings. Whatever complications arise from the fact of Mr Faulks' registration as proprietor of the Budgong property, so far as implementation of the orders of the Family Court are concerned, it would seem that those orders can be given effect without the co-operation of or involvement of the Official Trustee. In other words, any order against the Official Trustee, whether interim or otherwise, would not prevent the orders of the Family Court being implemented by the Registrar executing a transfer in favour of Mrs Parker and the Registrar-General giving effect to that transfer. Thus there is no point to any orders being made against the Official Trustee. They would not have the effect of securing to the applicant the relief she seeks, namely, to prevent transfer of

I should note that the search of the title to the Budgong property showed that the applicant had lodged a caveat. The caveat itself was not in evidence, but presumably was intended to protect her interest as purchaser under the contract of sale with, or alternatively, the transfer from Mr Faulks. The applicant's evidence was that she is actually living on the

Budgong property. Quite apart from evidentiary questions, there are procedural issues to be addressed if the applicant is to pursue a case that she has been adversely affected by the Family Court orders without being accorded an adequate opportunity to be heard. One course open to her may be to apply to the Family Court to stay the operation of the orders made on 23 September 1994. Another may be to join as parties in proceedings in this Court (or, perhaps, in the Supreme Court of New South Wales) the persons with an obvious interest in resisting her

claim. These would clearly include Mrs Parker and Mr Faulks.

As I stated in the course of argument, it is plainly desirable that the applicant have legal assistance to press what is clearly a complex case. While suggestions as to sources of possible assistance can be made, this is not, however, a

The upshot is that, on the material before me and in the proceedings as presently constituted, I do not consider that the applicant is entitled to any relief at this stage. I think the appropriate course in relation to costs, subject to any contrary argument, is to reserve the costs of the

I certify that this and the preceding 8 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Mr M. Freidman of Maurice Freidman & "~~ Company, Solicitors appeared for the Official Trustee.

At a glance

Court

Decision date

Before

Source

Judgment (33 paragraphs)

Legislation Cited (1)