Storry v Clout

Federal Court of Australia|2024-11-07|Before: Rangiah J

ustice and Attorney-General - Office of Fair Trading [2021] QCAT 435 Storry v Weir (No 2) [2022] FCA 1360 Storry v Weir [2022] FCA 1484 Storry v Weir [2022] FCA 362 Storry v Weir [2022] FCA 794 Storry v Weir [2023] HCASL 183 Storry v Weir [2023] QCA 4 Storry v Commissioner of Police [2017] QDC 282 United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116 Warner-Lambert Co LLC v Apotex Pty Ltd (2014) 311 ALR 632; [2014] FCAFC 59 Weir v Storry [2022] FedCFamC2G 183 Young v Thomson (2017) 253 FCR 191

Date of last submissions: 10 April 2024 (Respondent) 2 May 2024 (Applicant)

Counsel for the Applicant: The Applicant was self-represented

Solicitor for the Respondent: Mitchells Solicitors

BETWEEN: VENETIA LOUISE STORRY Applicant AND: DAVID CLOUT Respondent

order made by: RANGIAH J DATE OF ORDER: 7 NOVEMBER 2024

THE COURT ORDERS THAT:

The applicant's interlocutory application filed on 15 February 2024 seeking relief including an injunction and an order for the preservation of property is dismissed.
The applicant's oral interlocutory application for discovery is dismissed.
The applicant's Originating Application filed on 26 October 2023 is dismissed.
The applicant pay the respondent's costs of the proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT Factual and procedural background [5] Bankruptcy proceedings [6] QCAT proceedings [12] The present application [21] Statutory framework and relevant principles [25] Application for discovery [37] Application for injunctive relief and an order for the preservation of property [58] Whether the applicant has a prima face case [66] Application for summary judgment [80] Whether the applicant has any reasonable prospect of successfully prosecuting the proceeding; whether any reasonable cause of action is disclosed [84] Conclusion [91]

RANGIAH J:

The applicant applies under s 90-20 of Sch 2 to the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) for orders under s 90-15 that the respondent cease to be the trustee of her estate and pay damages associated with alleged breaches of duty.
The applicant has also made interlocutory applications for discovery of documents, for an injunction restraining the respondent from acting as the trustee of her estate and for an order for the preservation of property pending determination of her substantive application.
The respondent has sought summary judgment against the applicant in respect of the whole of the proceeding.
For the reasons that follow, the applicant's interlocutory applications will be refused and her substantive application dismissed.

Factual and procedural background

It is necessary to outline some of the lengthy and complex factual and procedural background of the matter before considering the relevant statutory framework, the parties' applications and submissions.

Bankruptcy proceedings

On 28 July 2016, the applicant was involved in a motor vehicle collision and was issued with a traffic infringement notice for the offence of failing to give way to a vehicle at an intersection with a stop sign. The applicant contested the infringement notice in the Magistrates Court of Queensland but was convicted and fined. The applicant then instituted a series of appeal proceedings but was unsuccessful: see Storry v Commissioner of Police [2017] QDC 282; Storry v Commissioner of Police [2018] QCA 291; Storry v Commissioner of Police & Anor [2022] HCASL 41.
The owner of the other motor vehicle involved in the collision proceeded (by his insurer) with a civil claim against the applicant for the property damage caused to his vehicle. On 4 December 2020, judgment was given against the applicant in the amount of approximately $39,500. The applicant filed an appeal against the decision, which was dismissed on 16 February 2021. The applicant subsequently filed an application for a stay of the orders of 16 February 2021, which was dismissed on 26 October 2021. The applicant also filed an application for a stay of the orders of 4 December 2020, which was dismissed on 7 December 2021: see Storry v Weir [2022] FCA 362 at [8]-[13]; Storry v Weir [2023] QCA 4 at [2]-[3].
The applicant did not pay the judgment sum and was subsequently served with a Bankruptcy Notice. On 14 December 2021, a creditor's petition was filed seeking a sequestration order against the applicant's estate: see Weir v Storry [2022] FedCFamC2G 183.
On 11 March 2022, the applicant filed an appeal in the District Court (BD589/22) against the decision to dismiss her application for a stay of the orders of 4 December 2020: see Storry v Weir [2022] FCA 362 at [15].
On 18 March 2022, a sequestration order was made against the applicant and the respondent became the trustee of her estate: Weir v Storry [2022] FedCFamC2G 183. The applicant again instituted a series of appeal proceedings but was unsuccessful: Storry v Weir [2022] FCA 794; Storry v Weir (No 2) [2022] FCA 1360; Storry v Weir [2022] FCA 1484; Storry v Weir [2023] HCASL 183.
On 21 March 2022, the lawyers for the motor vehicle insurer wrote to the respondent, seeking his election to either prosecute or discontinue the appeal proceeding before the District Court (BD589/22). On 23 March 2022, the respondent elected to discontinue the proceeding. On 19 October 2023, the applicant sent two emails to the respondent, requesting that he elect to prosecute the discontinued District Court proceeding.

QCAT proceedings

In 2016, the applicant took over her late father's real estate business, known as Anthony Storry Real Estate. The applicant subsequently established a company, Storry Real Estate Pty Ltd, to operate the business: see Storry v Chief Executive of the Office of Fair Trading, Department of Justice and Attorney-General [2021] QCA 30 at [6]-[7].
In July 2018, the Office of Fair Trading (OFT) received an audit report of the trust account for Anthony Storry Real Estate. The report detailed numerous contraventions of the Agents Financial Administration Act 2014 (Qld) (AFA Act) and the Property Occupations Act 2014 (Qld) in respect of trust account transactions. Following investigations, the OFT made decisions which included the appointment of a receiver over the Anthony Storry Real Estate trust account and the Storry Real Estate trust account: see Storry v Dept of Justice and Attorney-General - Office of Fair Trading [2020] QCAT 94 at [6]-[22]; Storry v Business Licensing Authority (No 2) [2023] FCA 102 at [3].
In May 2019, the receiver for the Anthony Storry Real Estate trust account and Storry Real Estate trust account transferred the balances of the trust accounts and provided a final claims report to the Chief Executive, Department of Justice and Attorney-General (OFT) (Department), pursuant to s 62(3) of the AFA Act. The Chief Executive then determined nine claims against the claim fund and found that the applicant and her late father were jointly and severally liable to reimburse the claims paid from the claim fund: see s 100, 112 and 116 of the AFA Act.
The applicant subsequently applied for review of the nine claims in the Queensland Civil and Administrative Tribunal (QCAT). On 16 December 2021, QCAT struck out six of the nine applications for review. The remaining three applications were struck out as to liability, but were to proceed as to an assessment of quantum only: Storry v Dept of Justice and Attorney-General - Office of Fair Trading [2021] QCAT 435 at [65].
On 28 March 2022, the Department wrote to the respondent advising him that the applicant had three proceedings before QCAT and noted that the proceedings had been stayed following the sequestration order, by operation of s 60(2) of the Bankruptcy Act. The Department sought the respondent's election to prosecute or discontinue the proceedings.
The applicant received a copy of the letter from the Department to the respondent. In response, the applicant emailed the Department and the respondent's office, stating that: Section 4 (a) of the Bankruptcy Act 1966 allows me to continue these proceedings as a wrong that has been done to me. Please be advised that this bankruptcy order is based on false claims of lawyers attempting to get indemnity fees for a supposed 3 day trial when in truth it was 1.5 days and on the basis that I did not attempt to settle before hand while the matter was under appeal with a stay filed in the District Court. The appropriate authorities have been informed of this matter. All of this was ignored by Justice Egan. The decision is under appeal in the Federal Court. So, I will be continuing with all my legal action pursuant to section 4 (a) of the Act while I wait for due process with the relevant authorities and the courts.
The applicant then forwarded that email to the respondent directly, adding that: Actually Section 60 (4)(a) and (b) are applicable in this case.
On the same day, the respondent wrote to the applicant, stating relevantly: As you may be aware, the letter requests that I make an election as to whether the following QCAT proceedings should be continued or discontinued:

GAR248-19 - Storry v DFAJ, Keith Graham Norman, Jacylynne Stead Norman
GAR249-19 - Storry v DJAG, Kambos Pty Ltd (Chrisanthy Comino)
GAR252-19 - Storry v DJAG, Gallpen Handyman Services (Andrew Leonard Gallpen) To enable me to consider the merits of the abovementioned proceedings and to assist me to determine whether or an election to continue or discontinue the proceedings should be made, and pursuant to Section 77(1)(ba) of the Bankruptcy Act 1966 ("the Act"), I require you to provide me with the following documents within 14 days of the date of this letter:
A summary explanation of the matters in dispute for each of the proceedings, including detail of the potential monetary value of the remedy sought (if applicable);
A copy of the applications lodged in connection with the proceedings;
A copy of any Notices and/or Decisions from QCAT relating to the proceedings; and
Copies of any independent legal advice obtained by you in relation to the matters in dispute and/or the merits of the proceedings.

The applicant did not respond to the respondent's letter, nor provide him with the documents requested. The respondent subsequently advised the Department that he did not make an election in relation to the three proceedings before QCAT. The respondent was then deemed to have abandoned the QCAT proceedings by operation of s 60(3) of the Bankruptcy Act.

The present application

On 26 October 2023, the applicant filed an application under s 90-20 of Sch 2 to the Bankruptcy Act seeking the following orders under s 90-15:
David Clout cease to be a Trustee of the estate, in consideration of his breach of s116(2) of the Bankruptcy Act 1966 with (a) Abandoning QCAT review claims: Consequences of a defalcation in my late father's trust account causing a debt to the estate of over $6'000 paid out under a claim requirement that has fraudulent consequences for the recipients. David Clout was warned in advance. (b) The Queensland Office of Fair Trading seeking to discipline me when the breach of s116 (2) belongs to David Clout. (c) Deception of Justice Collier and Abandoning QCAT review claims impacted on the ability of the estate of my late father to be finalised and Mr Clout provided information to AFSA and the CDPP to bring a prosecution against me, for financial issues he created and is responsible for. David Clout cease to be a Trustee of the estate, in consideration that he placed this breach in a letter attached to an affidavit before Justice Collier. The matter was bought to her Honour's attention and she failed to understand the breach, attributing the letter as issues between creditors, when Galpen, Norman and Kambos were not creditors but people who had money held in the trust of Anthony Storry Real Estate. David Clout cease to be a Trustee of the estate, acting in bad faith in not allowing the District Court appeal, especially when alerted to the letter of District Court Judge Gardiner (who does have District Court jurisdiction) that a cost appeal is open to the applicant from the decision of Acting Magistrate Smith and that evidence was not served on the applicant. A sequestration order is only permitted on a final judgment- Mr Clout is acting in conflict of interest and is seeking fees to adjudicate rather than allowing a District Court appeal when that appeal would bring his appointment to an end.
David Clout pay damages associated with his breaches and make good all of the loss caused to date.
On 12 February 2024, during the first case management hearing of the proceeding, the applicant made an oral application for discovery of documents and the respondent made an oral application for summary judgment.
On 15 February 2024, the applicant filed an application seeking urgent relief including an injunction to restrain the respondent from acting as the trustee of her estate and an order for the preservation of property pending determination of her substantive application.
On 21 March 2024, I heard the applications for discovery and interlocutory injunctive relief, together with the application for summary judgment.

Statutory framework and relevant principles

The applicant seeks orders under s 90-15 of Sch 2 to the Bankruptcy Act. That provision relevantly provides: 90‑15 Court may make orders in relation to estate administration Court may make orders (1) The Court may make such orders as it thinks fit in relation to the administration of a regulated debtor's estate. Orders on own initiative or on application (2) The Court may exercise the power under subsection (1): (a) on its own initiative, during proceedings before the Court; or (b) on application under section 90‑20. Examples of orders that may be made (3) Without limiting subsection (1), those orders may include any one or more of the following: … (b) an order that a person cease to be the trustee of the estate; … (e) an order in relation to any loss that the estate has sustained because of a breach of duty by the trustee; … Matters that may be taken into account (4) Without limiting the matters which the Court may take into account when making orders, the Court may take into account: (a) whether the trustee has faithfully performed, or is faithfully performing, the trustee's duties; and (b) whether an action or failure to act by the trustee is in compliance with this Act and the Insolvency Practice Rules; and (c) whether an action or failure to act by the trustee is in compliance with an order of the Court; and (d) whether the regulated debtor's estate or any person has suffered, or is likely to suffer, loss or damage because of an action or failure to act by the trustee; and (e) the seriousness of the consequences of any action or failure to act by the trustee, including the effect of that action or failure to act on public confidence in registered trustees as a group. … Orders to make good loss sustained because of a breach of duty (6) Without limiting subsection (1), an order mentioned in paragraph (3)(e) in relation to a loss may include an order that: (a) the trustee is personally liable to make good some or all of the loss; and (b) the trustee is not entitled to be reimbursed by the regulated debtor's estate or creditors in relation to the amount made good. …
Section 90-20(1)(a) of Sch 2 provides that "a person with a financial interest in the administration of the regulator debtor's estate" may apply for an order under s 90-15. A "regulated debtor" includes a bankrupt: s 5-15(a). A person has a "financial interest" in the administration of a regulated debtor's estate if the person is the regulated debtor: s 5-30(a)(i).
The effect of ss 90-15(1), (2)(b) and (3) and 90-20(1)(a) is that the Court may, on the application of a bankrupt, make orders in relation to the administration of the bankrupt's estate, including that a person cease to be the trustee of the estate: see Shaw v Official Trustee in Bankruptcy of Australian Financial Security Authority (No 3) [2021] FCA 1569 at [10]-[11].
In Mokhtar v Piscopo [2024] FCA 493 at [29]-[42], Perry J identified seven principles relevant to the exercise of the Court's discretion under s 90-15 to order that a trustee cease to be the trustee of a bankrupt's estate. Those principles may, relevantly for the purposes of the present case, be summarised as follows:
The general duties of the trustee in bankruptcy and the limited role of the Court provide important context against which to consider the matters raised by the applicant. In particular, the authorities have cautioned against undue interference by the Court in the administration of bankruptcy.
The power to remove and replace is not made subject to conditions such as proof of error, misfeasance, negligence or other poor conduct by a trustee. However, a two-stage approach, where the applicant must first establish grounds for an inquiry, may be appropriate where the orders sought by the applicant are based on broad allegations of misfeasance, neglect or other error in the conduct of the administration of the estate by the trustee, particularly where those allegations effectively encompass almost every aspect of the administration of the estate.
The principles and case law concerning the removal of liquidators may apply by analogy when considering whether to remove a trustee in bankruptcy.
The Court's power to remove a trustee is not limited to matters relating to the unfitness of the liquidator to hold office. Rather, it is open to the applicant to point to any conduct or inactivity on the liquidator's part that provides a basis for the conclusion that he or she should be removed, ranging from moral turpitude, to bias or partiality, lack of independence, incompetence or other unfitness for office.
The power to remove a trustee is not dependent on misconduct. A breakdown in the relationship between the bankrupt and the trustee may be sufficient, both for the purposes of an inquiry and for removal.
The mere breakdown in a relationship between the trustee and bankrupt will not always justify removal of the trustee. A bankrupt cannot, by their conduct in not cooperating with the trustee, cause a complete breakdown in their relationship, and then rely upon the breakdown as a basis upon which to remove the trustee.
The duties of the bankrupt under s 77 of the Bankruptcy Act are relevant to consider where the trustee's case alleges that the bankrupt failed to comply with those duties.
Justice Perry concluded at [44] that, "…the ultimate question for me on the basis of the authorities to which I have referred is whether removal would be in the best interests of the bankruptcy".
In the present application, it appears that the applicant seeks orders under s 90-15 on the basis that the respondent breached his duties, including by breaching s 116(2) of the Bankruptcy Act, acting in bad faith and acting in conflict of interest. It is therefore necessary to consider the duties of trustees and the standards against which a trustee's conduct must be assessed.
Section 19(1) of the Bankruptcy Act sets out a non-exhaustive list of the duties of the trustee of the estate of a bankrupt. It may be noted, however, that there is no allegation of a breach of duty under s 19(1). The applicant asserts that the trustee acted in "breach" of s 116(2) of the Bankruptcy Act, which specifies what property is not divisible among creditors of the bankrupt. Section 116(2) does not create any obligation or duty that is capable of being breached.
The applicant's allegations may be understood to generally allege failure to administer the estate in accordance with the Bankruptcy Act or in accordance with the general law. In Adsett v Berlouis (1992) 37 FCR 201 at 208-209, the Full Court adopted the following observations of Smithers J in Mannigel v Aitken (1983) 77 FLR 406 at 408-409, as a correct statement of the general law duties, and the proper manner of performance of those duties, of a trustee in bankruptcy: A trustee appointed in relation to a bankrupt becomes trustee of the bankrupt's estate. The trustee is bound to administer that estate in accordance with the Bankruptcy Act and Bankruptcy Rules. The trustee has a dual function: first, to administer the estate in the interests of the creditors and the bankrupt; secondly, to exercise, as a public duty and for the public welfare, certain powers given, and duties imposed, under the Act. The conduct of the trustee is subject to the supervision of the court and a trustee in bankruptcy has historically been regarded as an officer of the relevant court. A trustee in bankruptcy who acts for remuneration is under a duty of care greater than that of a gratuitous trustee. The trustee is required to bring reasonable skill to the performance of his or her duties. A trustee under the general law must exercise judgment so as to save the estate unnecessary expenditure of money. A trustee in bankruptcy is in no different position. The discharge of a public duty imposed by the Act is to be performed conformably with the requirements of that duty, but also conformably with the trustee's obligation to administer the estate in such a manner as to maximise the return from estate assets, and thereby to maximise satisfaction of the creditors' claims and any possible surplus for the bankrupt. We adopt, as a correct statement of the duty of a trustee and the proper manner of its performance, the words of Smithers J in Mannigel v Aitken (1983) 77 FLR 406 at 408-409: In the case of bankruptcy the Trustee is in charge of the assets of the bankrupt and those assets are to be applied for the benefit of the creditors and if there be any surplus for the benefit of the bankrupt. It is clear that the minimum standard required of the Trustee is that he shall handle the assets with a view to achieving the maximum return from the assets to satisfy the claims of the creditors and to provide the best surplus possible for the bankrupt. Obviously a great deal of discretion and judgment is required to be exercised by the Trustee. It was said by Rogerson J in Re Ladyman (1981) 55 FLR 383 at 394 -396 that the standard of conduct required of the Trustee will ordinarily be the standard required of a professional man and perhaps higher. The learned judge referred to "the high standard of conduct required of trustees". In Re Brogden [1888] All ER 927 Lord Justice Fry said at p 935: A Trustee undoubtedly has a discretion as to the mode and manner, and very often as to the time in which or at which, he shall carry his duty into effect. But his discretion is never an absolute one. It is always limited by - the dominant duty - the guiding duty of recovering, securing and duly applying the trust fund; and no Trustee can claim any right of discretion which does not agree with that paramount obligation. Where an order is sought that the Trustee be removed and to make good the losses suffered by the estate, it must be established that the Trustee has been guilty of a breach of duty to act "diligently and prudently in regard to the business of the Trust". See Riley J in Re Alafaci (supra) at 285. According to Halsbury's Laws of England (3rd ed) Vol 38, p 967, a trustee must take all reasonable and proper measures to obtain possession of the trust property and to get in all debts and funds due to the trust estate, and to preserve it, and to secure it from loss. He must take reasonable precautions to see the property is not stolen or lost by default. The Trustee is bound to execute the trust with fidelity and reasonable diligence and ought to conduct its affairs in the same manner as an ordinary prudent man of business would conduct his own affairs. But beyond this he is not bound to adopt further precautions. It was said by their Honours Dixon CJ, McTiernan and Windeyer JJ in Elder's Trustee and Executor Co Ltd v Higgins (1963) 113 CLR 426 that: "We are not to judge what the Trustee then did or failed to do by the light of later events…The duty of the Trustee was to exercise due diligence, care and prudence in the conduct of the business, bearing in mind the need to preserve the capital of the Testator's estate…The argument that the Trustee having, it was said, exercised a discretion, its conduct is now unchallengeable is sufficiently answered by a passage from the judgment of Fry LJ in Re Brogden (supra)…Whether or not one calls [the trustee's action] an exercise of discretion, the question remains was it the act of a prudent Trustee". (Emphasis added.)
A trustee in bankruptcy also is a trustee with all the fiduciary duties of a trustee under the general law, save to the extent that any such duty is modified by legislation: Young v Thomson (2017) 253 FCR 191 at [110] (Siopis and Rares JJ), citing Re Fuller, a bankrupt; Fuller v Wily [1996] FCA 523. As their Honours explained: …because the trustee is exercising a fiduciary power, he or she has a duty to do so honestly (ie in good faith), to act upon genuine consideration, "that is to take an informed view of whether or not to exercise his [or her] discretion, and not to act irresponsibly capriciously or wantonly", and to exercise the relevant power with due consideration for the purpose for which it was conferred and not for some ulterior purpose.
A trustee in bankruptcy also has a primary duty to protect the interests of creditors. In Patel v Ruhe [2016] FCA 520, Buchanan J observed at [33] that: Although a trustee may not disregard the legitimate interests of a bankrupt, a primary duty of a trustee is to protect the interests of creditors and recover for the estate such property as may reasonably be recovered in a commercially sound way. Judgments are required. The judgments are ones for the trustee to make and the Court will normally not interfere unless it is clear that some maladministration of the estate has occurred or is likely. (Citations omitted.)
His Honour's observation reflects the principle identified by Perry J in Mokhtar v Piscopo at [29]-[31] that the Court should not unduly interfere with the administration of a bankrupt's estate by a trustee, citing Re Tyndall (1977) 30 FLR 6 at [10] and Frigger v Trenfield (No 10) (2021) 397 ALR 24; [2021] FCA 1500 at [553].
With these principles in mind, I will now consider each of the interlocutory applications in turn.

Application for discovery

The applicant has made an application for discovery. There is no right to discovery in the Federal Court. A party seeking discovery must make an application: see Div 20.2 of the Federal Court Rules 2011 (Cth) (the Rules).
Rule 20.11 provides that, "[a] party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible". This rule reflects s 37M(1) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) which provides that, "[t]he overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible".
The Court has broad discretion in determining an application for discovery. In United Salvage Pty Ltd v Louis Dreyfus Armateurs SNC [2006] FCA 116, Tamberlin J observed at [3]: On a discovery application, the Court has a broad discretion and will balance the costs, time and possible oppression to the producing party against the importance and likely benefits which arise to the requesting party from production of the documents: Australian Broadcasting Commission v Parish (1981) 41 FLR 292 at 295. The Court will ensure that in all the circumstances, the litigation is conducted fairly in the interests of both parties, and care must be taken to make sure that there is no excessive or unnecessary discovery: see Index Group of Companies Pty Ltd v Nolan [2002] FCA 608. …
In Jilani v Wilhelm (2005) 148 FCR 255 at [108], the Full Court, in discussing the principles concerning applications for discovery in judicial review proceedings, adopted the principles summarised by Merkel J in Carmody v MacKellar (1996) 68 FCR 265 at 280, including:

if a proceeding or claims in it are essentially speculative in nature the Court will not order discovery in order to assist the applicant in a fishing exercise; …
if there is not the slightest evidence or there is no other material to support the bare allegations made in the proceeding, then as a general rule, an order for discovery ought not to be made.

The Full Court then explained the principle against allowing discovery for a "fishing" exercise at [110]-[112]: The principle against allowing discovery for the purpose of "fishing" was also referred to by Wilcox J in Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78 at 82. Wilcox J went on, at 83, to refer to the decisions in WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175 and Lloyd v Costigan (No 2) (1983) 82 FLR 104. The effect of those authorities is that it is not open to an applicant to make a bare allegation that a decision was made without any basis and then use the process of discovery to find out if the allegation has foundation. There must be sufficient definition of the issues to enable the Court to see that the documents sought on discovery relate to a live issue; there must at least be something from which the Court can see that there is a real issue the proof of which would be assisted by discovery; Nestle at 83; Murchison v Keating at 344-345. (Emphasis added. See also Nestle Australia Ltd v Commissioner of Taxation (1986) 10 FCR 78 at 82-83; Matson v Attorney-General [2020] FCA 1558 at [372].)
These principles are applicable to the application for discovery in the present proceeding.
The applicant's substantive application seeks an order removing the respondent as the trustee of her estate on the basis that the respondent:
breached s 116(2) of the Bankruptcy Act by abandoning the QCAT proceedings and deceiving the Court by giving evidence relating to the OFT's claim against her estate;
caused the OFT to institute disciplinary proceedings against the applicant due to his breach of s 116(2) of the Bankruptcy Act;
by his breach of s 116(2), impacted on the ability of her late father's estate to be finalised and caused the Commonwealth Director of Public Prosecutions (CDPP) to institute proceedings against her;
acted in bad faith by electing to discontinue the District Court proceeding; and
is acting in conflict of interest by seeking fees to adjudicate the claims against her estate instead of allowing the District Court proceeding to continue.
The applicant's proposed scope of discovery is as follows:
All documents provided to Mr Clout by the Office of Fair Trading and Crown Law in for the claims of Galpen, Norman and Kambos prior to submitting the information to the Court attached to an affidavit as claims.
All documents providing when Mr Clout knew of the amounts contained in the Trust Account of Anthony Storry Real Estate, what adjudication was used to determine the claims and when was the amounts and through whom were the amounts paid to Galpen, Norman and Kambos.
The respondent provide documents were [sic] he has provided reasons why he has not elected to hear the claims and strike out application in QCAT to (a) QCAT (b) Office of Fair Trading (c) Crown Law (d) The Department of Justice and Attorney General. (e) All communications with Julie Williams and the Office of David Clout and the Office of Fair Trading.
The Respondent provide document of funds he knew would belong to the applicant from the trust account Storry Real Estate PTY LTD under the receivership of BRI Ferrier.
The Respondent provide documents when and how He became aware that there was a legacy owing to the applicant and the predated sequestration order. A amount of $25,000.
The "claims of Galpen, Norman and Kambos" refer to those challenged by the applicant in the three QCAT proceedings that were permitted to proceed on the question of quantum and in respect of which the respondent did not make any election to continue. The "information to the Court attached to an affidavit as claims" refers to a letter annexed to an affidavit of the respondent addressed to the petitioning creditor's solicitor containing an update on the conduct of the bankruptcy. That letter identified the OFT as a creditor of the applicant's estate, having a claim for reimbursement of the three claims against the claim fund.
The applicant has filed two affidavits in support of her substantive application, as well as written submissions and two affidavits in support of her interlocutory applications.
Items 1 to 3 of the applicant's proposed scope of discovery appear to relate to her allegations concerning the respondent's alleged "breach" of s 116(2) of the Bankruptcy Act.
As has already been noted, s 116(2) of the Bankruptcy Act does not create any obligation or duty that can be breached. The applicant has not explained how the respondent "breached" s 116(2) of the Bankruptcy Act by not making an election in relation to the three proceedings before QCAT and by giving evidence in Court. The applicant's allegation that the respondent "breached" s 116(2) is not supported by any of the evidence before me. It follows that the applicant's allegation that the OFT is, "seeking to discipline [her] when the breach of s 116(2) belongs to David Clout" also cannot be made out.
The applicant asserts that the respondent's alleged "breach" of s 116(2) "impacted on the ability of the estate of [her] late father to be finalised and Mr Clout provided information to AFSA and the CDPP to bring a prosecution against [her], for financial issues he created and is responsible for". The applicant has not explained how the respondent's alleged "breach" of s 116(2) of the Bankruptcy Act has impacted on the ability of her late father's estate to be finalised, nor how he is "responsible" for the "financial issues" complained of. The respondent has deposed in an affidavit that he has, "provided information to ASFA in relation to various potential offences against the Bankruptcy Act" and that "the CDPP have since taken steps, on AFSA's behalf, to prosecute Ms Storry for various offences against the Bankruptcy Act". However, under s 19(1)(i) of the Bankruptcy Act, a trustee in bankruptcy is required to refer to relevant law enforcement authorities any evidence of offences by the bankrupt against the Bankruptcy Act. The applicant has not identified any exception to this duty and has not provided any evidence that supports her allegations.
The applicant's evidence otherwise fails to show that the trustee's abandonment of the QCAT proceedings arguably breached any duty owed to her, including the duty to act diligently and prudently in regard to the business of the trust. The applicant merely complains that the respondent ignored her request to have the QCAT proceedings heard in her own name, pursuant to s 60(4) of the Bankruptcy Act, despite that section having no application to the QCAT proceedings. In that respect, in Storry v Weir [2023] QCA 4, in which the applicant had unsuccessfully litigated a similar argument, Mullins P explained at [14]: It is therefore not necessary to consider Ms Storry's argument for why s 60(4) of the Act applied … That provision allows a bankrupt to continue with litigation that was on foot before becoming bankrupt in respect of any personal injury or wrong done to the bankrupt. The test for "personal injury or wrong" is "whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of [the bankrupt's] mind, body or character and without reference to [the bankrupt's] rights of property": Cox v Journeaux [No 2] (1935) 52 CLR 713 at 721. ...
The applicant also complains that the respondent did not provide reasons for his decision to not make an election to prosecute or discontinue the QCAT proceedings to QCAT, the OFT, Crown Law and the Department. However, the applicant has not identified any requirement for a trustee to provide any reasons in making or not making an election to prosecute or discontinue an action commenced by a person who subsequently becomes a bankrupt.
Further, the respondent's evidence discloses that the applicant did not respond to the respondent's email of 28 March 2022, in which he requested further information and documents to "enable [him] to consider the merits of the abovementioned proceedings and to assist [him] to determine whether… an election to continue or discontinue the proceedings should be made". There is no evidence or other material to support the applicant's allegations that the respondent breached any duty owed in not making an election to prosecute the proceedings.
Items 4 to 5 of the applicant's proposed scope of discovery do not bear any relevance, let alone direct relevance, to her other allegations that the respondent acted in bad faith and in conflict of interest by electing to discontinue the District Court proceeding.
The District Court proceeding was an appeal against the decision to dismiss the applicant's application for a stay of the orders of 4 December 2020, following the determination of the civil claim against the applicant arising from the motor vehicle collision. The applicant's evidence discloses that she emailed the respondent nearly 19 months after he made an election to discontinue the District Court proceeding, requesting that he elect to prosecute the proceeding that had already been discontinued. Documents relating to the respondent's knowledge of funds, "belong[ing] to the applicant from the trust account…under the receivership of BRI Ferrier", and of a, "legacy owing to the applicant and the predated sequestration order", are not relevant to the applicant's allegations concerning the respondent's election to discontinue the District Court proceeding. There is no evidence or other material before me that suggests the respondent acted in bad faith or in conflict of interest in making an election to discontinue the proceeding.
The applicant's submissions as to why discovery should be ordered contain various bare allegations and complaints about the respondent's conduct, including that he:

"put unadjudicated debts before the Court";
breached s 116(2)(a) of the Bankruptcy Act "in not electing to continue the QCAT claims" when the applicant had "requested that the QCAT reviews not be abandoned…and asked for the claims to be heard in her own name in consideration of s 60 (2) and (4) of the Bankruptcy Act";
"caused a financial loss that would otherwise not of occurred if he had obscuring the errors of the receiver… who had used these errors to secure her appointment as a receiver";
"knew that financially the applicant was not bankrupt…, were [sic] it was possible for the bankrupt to pay her debts by achieving an accessible loan, where assets are substantially higher than the judgment debt";
"knew that the financial statement could not be accurately provided as the errors of the receiver… in the claims comprised the financials of the applicant that had been falsely provided to Justice Collier" which "caused the CDPP to prosecute";
"at no time, provided the Court with reasons for abandoning the District Court appeal and attempting to abandon the Court of Appeal, Supreme Court application and the matter remains stayed"; and
"denied the applicant the right to have the civil appeal heard in the District Court knowing that the applicant had legal grounds for appeal on both quantum and on evidence held back".

During the hearing of argument, the applicant indicated that her purpose in seeking discovery was to know whether the respondent knew that she was not in fact bankrupt. She stated, relevantly: So I'm interested in knowing for - in order to have this disclosed at what point did Mr Clout know that I had assets that significantly exceeded the debt, because I'm being bankrupted on an appeal that they said wasn't going to have legs, not on finances. … So if he knew at a certain point that there was no way I came under the bankruptcy…If he knew, and when he knew, that I wasn't actually bankrupt - so that's what my disclosure application is about".
It appears from the applicant's submissions and admissions that she seeks to use the process of discovery as a "fishing" exercise, to construct some case against the respondent to warrant his removal as the trustee of her estate and to challenge her bankruptcy. There is no evidence or other material before me to support the bare allegations she has made. She has failed to demonstrate that there are any real issues, the proof of which would be assisted by discovery in the form she has proposed. In these circumstances, an order for discovery ought not to be made.

Application for injunctive relief and an order for the preservation of property

On 15 February 2024, nearly five months after commencing the proceeding, the applicant filed an application under r 7.01 of the Rules seeking urgent injunctive relief.
Rule 7.01 provides: 7.01 Order before start of proceeding (1) If a matter is urgent, a person who intends to start a proceeding (a prospective applicant) may apply to the Court, without notice, as if the prospective applicant had started the proceeding and the application had been made in the proceeding, for an order: (a) granting an injunction; or (b) if the matter relates to property: (i) for the detention, custody, preservation or inspection of the property; and (ii) to authorise any person to enter any land, or do any other act or thing, for the purpose of giving effect to the order; or (c) if the matter relates to the right of a prospective applicant to an amount in a fund - that the amount in the fund be paid into Court or otherwise secured; or (d) appointing a receiver with the power of a receiver and manager. …
It may be noted that r 7.01 deals with applications for orders before the start of a proceeding and is not the appropriate procedure to adopt once a proceeding has commenced. Rule 17.01(1) provides that, "[a] party who wants to apply for an order in a proceeding that has already started must file an interlocutory application…", and r 14.11 allows a party to apply for an order in substantially the same terms of r 7.01(1)(b)-(c).
The applicant seeks the following orders: …
An injunction restraining the actions of the Trustee David Clout in all his duties as Trustee in Bankruptcy until the determination of the removal application by the Court.
Preservation of, including but not exclusive of, all property held in trust for, as a benefactor and as part of a legacy for Venetia Louise Starry and other joint benefactors.
Fund amounts belonging to the Trust Account of Anthony Starry Real Estate not payable to Andrew Galpen, Chris Camino (Kambos PTY LTD) and Keith and Jacqueline Norman determined by the evidence in the Queensland Civil and Administration claim review be deposited by the Trustee David Clout and held by the Federal Court of Australia until the determination of the application for removal is determined by the Court.
Fund amounts belonging to the Trust Account of Storry Real Estate PTY LTD for Commission and GST be paid into the Federal Court by David Clout until the determination of the application for removal is determined by the Federal Court (To be retrieved from the Queensland Office of Fair Trading in required).
I will consider the applicant's application as if it were an application filed under rr 17.01(1) and 14.11. In Brentwood Village Ltd (in Liq) v Terrigal Grosvenor Lodge Pty Ltd (No 2) [2015] FCA 944 at [48], Gleeson J accepted that the "orthodox approach" to an application for interlocutory injunctive relief applies to an application made under r 14.11.
There are two inquiries that must be undertaken in relation to the grant of an interlocutory injunction. The first relates to whether the applicant has a prima facie case in respect of its claim to final relief, and the second to the balance of convenience: StarTrack Express Pty Ltd v TMA Australia Pty Ltd [2023] FCAFC 200 at [50]-[57]; Warner-Lambert Co LLC v Apotex Pty Ltd (2014) 311 ALR 632; [2014] FCAFC 59 at [68].
The principles to be applied in determining whether to grant interlocutory relief were considered by the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ): The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) 118 CLR 618]. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued [(1968) 118 CLR 618 at 622-623]: The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted. By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument [ (1968) 118 CLR 618 at 620]. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal [(1968) 118 CLR 618 at 622]: How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.
Whether an applicant has a prima facie case and whether the balance of convenience favours the grant of interlocutory relief are related questions. As the Full Court in Warner-Lambert Co LLC v Apotex Pty Ltd explained at [70]: … It will often be necessary to give close attention to the strength of a party's case when assessing the risk of doing an injustice to either party by the granting or withholding of interlocutory relief especially if the outcome of the interlocutory application is likely to have the practical effect of determining the substance of the matter in issue or if other remedies, including an award of damages, or an award of compensation pursuant to the usual undertaking, are likely to be inadequate.

Whether the applicant has a prima face case

The applicant's substantive application seeks an order removing the respondent as trustee of her estate on the basis that the respondent:
breached s 116(2) of the Bankruptcy Act by abandoning the QCAT proceedings and deceiving the Court by giving evidence relating to the OFT's claim against her estate;
caused the OFT to institute disciplinary proceedings against the applicant due to his breach of s 116(2) of the Bankruptcy Act;
by his breach of s 116(2), impacted on the ability of her late father's estate to be finalised and caused the CDPP to institute proceedings against her;
acted in bad faith by electing to discontinue the District Court proceeding; and
is acting in conflict of interest by seeking fees to adjudicate the claims against her estate instead of allowing the District Court proceeding to continue.
I will consider whether the applicant has demonstrated that she has a sufficient likelihood of success in her substantive application to justify the preservation of the status quo pending the trial.
As I have explained above, the applicant's allegations that the respondent has "breached" s 116(2) of the Bankruptcy Act or any other general law duty in respect of his abandonment of the QCAT proceedings are not supported by any of the evidence she has adduced. She has not explained how the respondent's "breach" of s 116(2) caused the OFT to institute proceedings against her and she has not identified any exception to the duty of a trustee to refer to relevant law enforcement authorities any evidence of offences by the bankrupt against the Bankruptcy Act (s 19(1)(i)).
The applicant also has not explained how the respondent's alleged "breach" of s 116(2) of the Bankruptcy Act has impacted on the ability of her late father's estate to be finalised. The applicant's evidence discloses that she is the executor of her late father's estate and has failed to comply with the respondent's requests to vacate and arrange for the sale of her late father's property at 145 Broseley Rd, Toowong, to enable the realisation of her interest in the property. In any event, her complaints that the respondent has somehow impacted on the finalisation of her late father's estate carries little weight. As Buchannan J held in Boensch v Pascoe [2007] FCA 1977 at [92], "a bankrupt should not be allowed, by an assiduous pattern of resistance to the trustee of [their] estate, to generate and then rely upon a suggested reason for removal thereby created".
The applicant's submissions in support of her application for injunctive relief contain various assertions concerning her allegation that the respondent acted in bad faith when he elected to discontinue the District Court proceeding, including that:

the respondent has not provided the Court with reasons for abandoning the District Court proceeding;
at the time of the respondent's election to discontinue the proceeding, the reasons for judgment in the creditor's petition against her had not been published.
the applicant "had civil appeal rights as shown by Judge Gardiner", notwithstanding that the reasons for judgment in Weir v Storry [2022] FedCFamC2G 183 stating at [6] that the applicant had "exhausted her avenues of appeal against the Magistrates Court judgement entered against her" and any further proceedings had "no prospects of success";
"there was no prohibitive measure that determines that further evidence placed before the District Court would not bring about another determination in the District Court Appeal";
On 19 October 2023, the respondent "was provided with evidence that URL Lawyers had refused access to documents of [the applicant's] witness statement in the QPRIME material supporting a different outcome for the civil and traffic infringement proceedings"; and
the respondent denied the applicant, "the right to have the civil appeal heard in the District Court knowing that the applicant had legal grounds for appeal on both quantum and on evidence held back".

The evidence adduced by the applicant shows that she sent the respondent two emails on 19 October 2023, requesting that he elect to continue the District Court proceeding despite the proceeding having been discontinued nearly 19 months prior. The emails contain attachments including a letter from the Chief Magistrate dated 25 March 2022, apparently written in response to a complaint by the applicant concerning the order for costs made on 18 November 2020. The letter states that, "[t]he only avenue to set aside an order of a Court is to appeal the decision made". The other attachments are various emails which the applicant describes as, "proof that URL lawyers did not disclose [her] witness evidence from the QPRIME evidence that supports that liability does not support the judgment debt". The emails, insofar as they are legible, indicate that the lawyers provided the applicant with a copy of all documents required to be disclosed.
The applicant's evidence fails to raise any arguable case that the respondent acted in bad faith in electing to discontinue the District Court proceeding. None of the material she emailed to the respondent was before him when he made the decision to discontinue the proceeding. In any event, the material was irrelevant and contradicted her assertions to the respondent that she was impermissibly refused access to evidence.
In respect of the applicant's allegation that the respondent is acting in conflict of interest by adjudicating creditors' claims instead of allowing the District Court proceeding to continue, the applicant submits that "a successful District Court appeal removes the sequestration order". That submission is misconceived. Notwithstanding that the District Court proceeding has been discontinued, it was an appeal against the decision to dismiss her application for a stay of the orders of 4 December 2020, following the determination of the civil claim against her. Even if that appeal were to be determined in her favour, it could not have the effect of removing the sequestration order against her.
The applicant's submissions as to why an order for the preservation of property ought to be made are otherwise very difficult to understand and do little more than identify what is proposed to be subject to such an order, being:

The quantum of claims in the three proceedings before QCAT which were deemed to be abandoned;
The property at 145 Broseley Rd, Toowong;
The legacy of Marie McIlwain; and
"The financials of BRI Ferrier".

The applicant's submissions contain a number of bare assertions including that "the property at 145 Broseley Road, Toowong should not be sold"; that, "the supposed creditors have caused financial disadvantage through false affidavits and placing misleading information in the Courts"; and "BRI Ferrier will not disclose to the Applicant where the missing commission and GST have been disbursed to". She also states that the respondent, "has stated that the Executor of the Estate is safekeeping the legacy in consideration of the appeals", and "should that change, a preservation of these funds would be required". None of these assertions are supported by the evidence before me.
I am not satisfied on the evidence before me that the respondent has arguably breached any duty. There is no evidence which suggests that the respondent has failed to administer the estate in a manner as to maximise the return from assets to satisfy the claims of creditors and any possible surplus for the applicant: cf Adsett v Berlouis at 208-209. Nor is there any evidence that the trustee has failed to act with fidelity and reasonable diligence, or has acted for some ulterior purpose: cf Adsett v Berlouis at 208-209; Young v Thomson at [110]. The applicant's evidence fails to disclose any arguable case of maladministration of the estate or that the respondent acted in a way that was "perverse or clearly wrong": Re Tyndall at [10].
While the applicant is not required to establish particular grounds for an inquiry into the conduct of the trustee, she has not argued that the respondent ought to be removed for any other reason, including that the relationship between the trustee and the bankrupt has totally broken down: see Mokhtar v Piscopo at [32]-[33] and [37]-[39]. In any event, as I have noted above, such an argument would carry little weight due to her pattern of resistance to the administration of her estate. In addition to the evidence of her failure to cooperate with the respondent in respect of the sale of the Toowong property, the applicant has produced evidence that she has been charged with two offences under the Bankruptcy Act, namely failing to make out and file a statement of affairs and furnish a copy to the trustee (s 54(1)) and failing to fully and truly disclose to the trustee all of her property and its value (s 265(1)(CA)). The respondent's evidence also indicates that the applicant has failed to give requested information about her conduct and examinable affairs as required by s 77(1)(ba) of the Bankruptcy Act.
In these circumstances. I find that the applicant does not have a prima facie case and accordingly, it is not strictly necessary to make any finding as to the balance of convenience. However, it may be noted that the applicant has not advanced any submission that an award of damages at trial would not be a sufficient remedy and has, in fact, sought relief in the form of an order that the respondent, "pay damages associated with his breaches and make good all of the loss caused to date".
The applicant's application for interlocutory injunctive relief must be dismissed.

Application for summary judgment

The respondent has applied for summary judgment of the applicant's substantive application pursuant to r 26.01(1) of the Rules on the basis that:
that the applicant has no reasonable prospect of successfully prosecuting the proceeding;
the proceeding is frivolous or vexatious;
no reasonable cause of action is disclosed; and
the proceeding is an abuse of process of the Court.
Rule 26.01(1) provides that: 26.01 Summary judgment (1) A party may apply to the Court for an order that judgment be given against another party because: (a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or (b) the proceeding is frivolous or vexatious; or (c) no reasonable cause of action is disclosed; or (d) the proceeding is an abuse of the process of the Court; or (e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.
The relevant principles concerning summary judgment were summarised by Wigney J in Mineralogy Pty Ltd v Australian Securities and Investments Commission (2021) 156 ACSR 598; [2021] FCA 996 at [120]-[123] as follows: First, an applicant may have no reasonable prospect of successfully prosecuting the proceeding even if it cannot be concluded that the proceeding is hopeless or bound to fail: Spencer v Commonwealth (2010) 241 CLR 118; 269 ALR 233; [2010] HCA 28 at [17] (Spencer) (French CJ and Gummow J). Although the Court in Spencer was considering the principles applicable in the context of s 31A of the Federal Court Act, rather than r 26.01 of the Rules, those "provisions contain identical tests": Zippo Manufacturing Co v Jaxlawn Pty Ltd [2011] FCA 1125 at [20] (Gordon J). The relevant inquiry is "not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail": Spencer at [52] (Hayne, Crennan, Kiefel and Bell JJ). Second, a "reasonable cause of action", for the purposes r 16.21 of the Rules, is a cause of action that has some chance of success having regard to the allegations pleaded: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97 at [42]-[43]; Chandrasekaran v Commonwealth (No 3) [2020] FCA 1629 at [102], [108]-[111]. It is difficult to see why a "reasonable cause of action" for the purposes of r 26.01(1)(c) of the Rules would have any different meaning. Third, the concept of abuse of process is flexible and "insusceptible of a formulation which comprises closed categories": Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; 323 ALR 1; [2015] HCA 28 at [25]. It applies in any circumstances in which the Court's processes are used for an illegitimate purpose, or are used in a way which would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute: Rogers v R (1994) 181 CLR 251 at 255-6, 286; 123 ALR 417 at 419-20, 444. Fourth, the "exercise of powers to summarily terminate proceedings must always be attended with caution", whatever may be the basis upon which that disposition is sought: Spencer at [24] (French CJ and Gummow J). It is not a power to be exercised lightly: Spencer at [60] (Hayne, Crennan, Kiefel and Bell JJ).There must be a "high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way": Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; 227 ALR 425; 45 MVR 288; [2006] HCA 27 at [46], citing Agar v Hyde (2000) 201 CLR 552; 173 ALR 665; [2000] HCA 41 at [57], referred to in Spencer at [24] (French CJ and Gummow J).
In Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808, McKerracher J observed at [33] that: Proceedings dismissed pursuant to r 26.01(1)(c) of the Federal Court Rules for not disclosing a reasonable cause of action include: (a) where the originating application is not accompanied by pleadings, affidavits or submissions, and simply makes 'bare demands' without articulating the legal bases for the claims: Sullivan v North West Crewing Pty Ltd [2016] FCA 1130 per McKerracher J (at [33]-[34]); and (b) where pleadings consist of 'scandalous, conclusory allegations, with no attempt to plead any material facts upon which the allegations are made and which raise no reasonable cause of action': Kimber v Owners Strata Plan No 48216 [2016] FCA 1090 per Perry J (at [72]).

Whether the applicant has any reasonable prospect of successfully prosecuting the proceeding; whether any reasonable cause of action is disclosed

The applicant's first claim asserts that the respondent breached s 116(2) of the Bankruptcy Act by abandoning her QCAT proceedings. The respondent submits that s 116(2) does not apply to the proceedings commenced by the applicant in QCAT. The respondent also submits that s 60(4), which allows a bankrupt to continue a legal proceeding in their own name in certain circumstances, has no application as the proceedings are not in respect of personal injury or death. The respondent submits that his actions in not electing to continue the QCAT proceedings, "accord with orthodox practice, and do not offend any of the criteria which may justify trustee cessation".
As to the applicant's second claim, that the OFT "is seeking to displacing [her] when the breach of s 116(2) belongs to [the respondent]", the respondent submits that this argument is untenable as s 116(2) does not apply and the respondent is not responsible for any disciplinary action taken by the OFT against the applicant.
The applicant's third claim contains allegations that the respondent's conduct impacted the ability of her late father's estate to be finalised and that the respondent provided information to the AFSA and the CDPP. The respondent submits that a trustee is required to consider and report evidence of alleged offences against the Bankruptcy Act to AFSA, pursuant to s 19 of the Bankruptcy Act.
The applicant's fourth claim asserts that the respondent placed, in breach of s 116(2), a letter before the Court in her application for a stay of the sequestration order and Collier J, "failed to understand the breach, attributing the letter as issues between creditors, when Galpen, Norman and Kambos were not creditors". The respondent explains that the relevant letter was a letter the respondent issued to the petitioning creditor's solicitor and that the information in the letter was reflected in the proof of debt document lodged by the OFT. The respondent states that the letter does not state that Galpen, Norman nor Kambos were creditors and submits that this issue was not the subject of the application before Collier J.
The applicant's fifth claim is that the respondent acted "in bad faith" in electing to discontinue the appeal proceeding in the District Court and is, "acting in conflict of interest and is seeking fees to adjudicate rather than allowing a District Court appeal when that appeal would bring his appointment to an end". The respondent submits that he has power to determine the value of creditors' claims in bankrupt estates without engaging and incurring the cost of lawyers. The respondent submits there is no conflict of interest in doing so and states that "it is likely the cost of adjudicating a claim would be significantly lower than the cost of having the value of the claim determined via the courts". The respondent points to particular reasons for his election, including the costs associated with continuing the matter, the lack of funds available to meet such costs, the applicant's history of unsuccessful appeals and the observation in Weir v Storry [2022] FedCFamC2G 183 at [6] that the applicant had, "exhausted all avenues of appeal against the Magistrates Court judgment entered against her. Any further appeal proceedings filed by or on behalf of [Ms Storry] have no prospects of success". The respondent submits that he acted orthodoxly and appropriately.
For reasons I have already explained, the applicant's claims that the respondent has somehow breached s 116(2) of the Bankruptcy Act or any other duty under the Bankruptcy Act or the general law, is acting in bad faith and in conflict of interest, have no reasonable prospect of success. The applicant has not advanced any other arguable basis for the removal of her trustee and there is no arguable basis for satisfaction that the removal of the respondent would be in the best interests of the bankruptcy. Accordingly, the applicant's proceeding does not disclose any reasonable cause of action and there is no realistic chance that she will be successful in her substantive application.
It follows that there is no arguable basis for the Court to intervene in the respondent's administration of her estate by making any order under s 90-15 of Sch 2 of the Bankruptcy Act. There is no reasonable prospect of successfully prosecuting the proceeding, and no reasonable cause of action is disclosed.

Conclusion

The applicant's proceeding will be summarily dismissed with costs. I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.

Bankruptcy Act 1966(Cth)ss 19, 19(1), 54(1), 60(2), 60(3), 60(4), 116(2), 265(1)(CA), Sch

Federal Court Rules 2011(Cth)rr 7.01, 14.11, 17.01(1), 20.11, 26.01(1)

At a glance

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Judgment (19 paragraphs)

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Legislation Cited (5)

Cases Cited (59)