Chapman, Russell Burley v Gooch Ware Travelstead & Ors [1998] FCA 1024

FEDERAL COURT OF AUSTRALIA PRACTICE AND PROCEDURE – abuse of process – application claiming against US resident – in respect of Australian transactions and conduct – under Australian law – respondent invokes protection of US bankruptcy laws – Chapter 11 Reorganization Plan – applicant does not claim under US bankruptcy laws – claim denied by respondent – whether Federal Court inappropriate forum for claim – impact of claim for relief as distinct from enforcement of relief – extension of time and leave to appeal – service out of jurisdiction – ruling dismissing motion to set aside service – motion for leave to appeal out of time – principles – whether leave should be granted – leave refused.

Trade Practices Act 1974 (Cth) s 51A United States Bankruptcy Code Chapter 11 In Re Artola Hermanos ex parte Andre Chale (1890) 24 QBD 640, cited Galbraith v Grimshaw [1910] AC 508, cited Flexistowe Dock and Railway Co v United States Lines Inc (1989) 1 QB 360, discussed Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, discussed Federal Commissioner of Taxation v Hydro Carbon Products Pty Ltd (1986) 72 ALR 391, cited Federal Commissioner of Taxation v Nestle Australia Ltd (1986) 69 ALR 445, cited

RUSSELL BURLEY CHAPMAN v GOOCH WARE TRAVELSTEAD AND OTHERS WAG 103 OF 1997

FRENCH J PERTH 25 AUGUST 1998

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY wag 103 OF 1997

BETWEEN: RUSSELL BURLEY CHAPMAN

APPLICANT

and: GOOCH WARE TRAVELSTEAD

FIRST RESPONDENT

AUSTRALIAN CITY PROPERTIES LIMITED

ACN 008 697 961

second respondent

hyde park management pty ltd

ACN 008 698 708

THIRD RESPONDENT

BLOCKLESS INVESTMENTS BV

FOURTH RESPONDENT

JUDGE: french j

DATE OF ORDER: 25 august 1998

WHERE MADE: perth

THE COURT ORDERS THAT:

A. On the First Respondent's motion filed 10 July 1998: 1. The motion is dismissed. 2. The First Respondent is to pay the Applicant's costs of the motion. 3. The time limited for seeking leave to appeal will be extended to 15 September 1998. A. On the Fourth Respondent's motion filed 10 July 1998: 1. The time for seeking leave to appeal is extended to enable the motion for leave to be heard. 2. The motion for leave is dismissed. 3. The Fourth Respondent is to pay the Applicant's costs of the motion. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.