Re Gorcilov Macks, Peter Ivan as Trustee for the Bankrupt Estate of Gorcilov, Donka v Ekena Pty Ltd & Anor [1998] FCA 1573

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 7074 of 1998

IN THE MATTER OF DONKA GORCILOV

BETWEEN: peter ivan macks

AS TRUSTEE FOR THE BANKRUPT ESTATE OF

DONKA GORCILOV

Applicant

AND: ekena pty ltd

First Respondent

macquarie investment management limited

Second respondent

JUDGE: MANSFIELD J

DATE: 23 september 1998

PLACE: ADELAIDE

REASONS FOR JUDGMENT

The Application This is a motion for judgment on the claim, and for dismissal of the cross-claim, under O 20 rr 1 and 2 of the Federal Court Rules (Òthe RulesÓ). The principles upon which judgment may be given under those rules are well established: The power should be exercised with exceptional care: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129. It must be clear that there is no real question to be tried: U.C. Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99. I recognise that there is an especial need for caution where the ultimate outcome depends upon some disputed issue or issues of fact. This matter is abnormal, as counsel for the applicant acknowledges, because there has been filed on behalf of the first respondent Ekena Pty Ltd (ÒEkenaÓ) affidavit material which in some respects gives rise to issues of credibility. The applicant therefore accepts that he can only succeed on the application if, in reality, notwithstanding those affidavits there is no triable issue. In Webster v Lampard (1993) 177 CLR 598 the High Court approached such an application on the basis that responding affidavits will ultimately be accepted at the trial, provided they are not inherently incredible and absent an opportunity for cross-examination (per Mason CJ, Deane and Dawson JJ at 604). This is one matter where, notwithstanding the affidavits relied upon by Ekena, I am satisfied both that there is no arguable defence to the applicantÕs claim and that EkenaÕs cross claim cannot possibly succeed. The applicant has read extensive affidavit material without objection. Ekena also read without opposition a number of affidavits. It also sought to rely on the oral evidence of John Phillips junior (ÒMr PhillipsÓ), of Peter Tomaras (ÒMr TomarasÓ) and of Menka Milosevski (ÒMs MilosevskiÓ) given on the application to vary the Mareva injunction first made on 2 April 1998. I dealt with that application and gave judgment with respect to it on 22 June 1998. At that time I did not need to address the question of the reliability of that evidence. Ekena, which appeared on the present application by its director Mr Tomaras, asked that I have regard to that evidence, including my assessment as to the reliability of it.