Wilson, in the matter of Wilson v Official Trustee in Bankruptcy (No 1) [2000] FCA 1039

JUDGE: EMMETT J

DATE: 18 JULY 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 23 February 2000 the applicants filed a notice of motion seeking, inter alia, the following order: "That the Notice of Motion filed on the 18 February 2000 in the above matter by the Second Respondent be struck out pursuant to Order 20 Rule 1 of the Federal court [sic] Rules." Notice of motion was subsequently filed by the second respondents on 14 March 2000 seeking an order that the application be struck out pursuant to Order 21 Rule 1 and Order 11 Rule 16. When the motion filed on 23 February 2000 came before me I ordered that it be struck out and ordered the applicants to pay the respondents' costs of that motion, on the basis that there was no such motion that had been filed on 18 February 2000. 2 I now have before me a notice of motion, amended by leave given by me today, seeking an order revoking the order for the costs of the motion of 23 February 2000. The basis upon which I am asked to vary the order is that Ms Williams was misled into filing the motion of 23 February 2000 by a statement made by the solicitor for the second respondents in a letter of 16 February 2000 enclosing a draft notice of motion saying that the notice of motion would be filed at court on Friday, 18 February 2000. 3 As I have said, the notice of motion was not in fact filed on 18 February 2000. In the meantime, however, Ms Williams, assuming that the threat contained in the letter of 16 February 2000 would be carried out, filed her notice of motion seeking that the threatened motion be struck out. When I ordered that the motion of 23 February 200 be struck out with costs, I did so on the basis that there was no motion that could be struck out. In fact there was no basis at all upon which the applicants could have succeeded in striking out the motion filed on 14 March 2000. That motion was subsequently amended, following the amendment of the application, to seek the striking out of the amended application. Even if the motion of 23 February 2000 had been amended to refer to the motion of 14 March 2000 instead of the motion of 18 February 2000 it would have failed and I would have ordered that it be dismissed with costs. 4 In other words, had I heard the substance of the motion, rather than dealing with it by reason of its irregularity in form, the result would have been the same. Accordingly, I see no reason to vary the orders that I made on 24 March 2000. Accordingly, I dismiss the motion filed on 16 June 2000 and order the applicant to pay the costs of that motion. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.