Southern Hotels Pty Ltd, in the matter of Temple [2000] FCA 1406

FEDERAL COURT OF AUSTRALIA

Southern Hotels Pty Ltd in the matter of Temple [2000] FCA 1406 BANKRUPTCY – form of proceedings – identification of party against whom relief is sought. Bankruptcy Act 1996 (Cth) s 81, s 178 Federal Court of Australia Act 1976 (Cth) Federal Court Rules O 1 rr 7(2), (8), O 77, O 77 rr 4(1), 4(2), 5, 6

Re Lamb; Ex parte Registrar in Bankruptcy (1984) 1 FCR 391 Re Partridge (Federal Court of Australia, Lockhart J, 22 September 1982, unreported) Re Hetherington (Sweeney J, 14 December 1982, unreported) Re Pruzanski; Ex parte Horne [2000] FCA 151 Farrington v Rowe, McBride & Partners [1985] 1 NZLR 83 Fullwood v Hurley [1928] 1 KB 498 Re Coles & Ravenshear [1907] 1 KB 1 Morres v Papuan Rubber and Trading Co Ltd (1914) 14 SR (NSW) 141 Jess v Scott (1986) 12 FCR 187 IN THE MATTER OF THE BANKRUPT ESTATE OF RUSSELL JAMES TEMPLE SOUTHERN HOTELS PTY LTD (APPLICANT) NO S 7048 OF 2000 O'LOUGHLIN J ADELAIDE 6 OCTOBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 7048 OF 2000

IN THE MATTER OF THE BANKRUPT ESTATE OF RUSSELL JAMES TEMPLE

SOUTHERN HOTELS PTY LTD

APPLICANT

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 6 OCTOBER 2000

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application of Southern Hotels Pty Ltd as contained in a document entitled "Notice of Motion" be dismissed. 2. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 7048 OF 2000

IN THE MATTER OF THE BANKRUPT ESTATE OF RUSSELL JAMES TEMPLE

SOUTHERN HOTELS PTY LTD

APPLICANT

JUDGE: O'LOUGHLIN J

DATE:

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 Mr Richard George Freer ("the trustee" or "Mr Freer") is presently the trustee of the bankrupt estate of Russell James Temple ("the bankrupt" or "Mr Temple"). Prior to his bankruptcy, Mr Temple and his parents were involved in bitter and protracted litigation in the Supreme Court of South Australia. The antagonism that arose as a result of that litigation has flowed over into the bankruptcy proceedings and it has lead to a usual application coming before the Court. 2 The prelude to the application was an earlier application in the same action, dated 23 March 2000, which was filed in the South Australian District Registry of the Court by Hynd and Co Pty Ltd, the solicitor for the trustee. It sought an order that the Registrar issue a summons under s 81 of the Bankruptcy Act 1996 (Cth) ("the Act") for the public examination of the bankrupt. The heading that appeared on that application was: "In the Matter of: Richard George Freer Trustee of the Property of Russell James Temple (a Bankrupt." 3 The summons duly issued and an affidavit of service was placed on the Court file deposing to service on the bankrupt on 29 March 2000. The time and date for the examination was fixed for 10:00 am on Thursday 27 April 2000. On 20 April 2000, on the application of the bankrupt, the date for the proposed examination was vacated so that the bankrupt could complete some work in Darwin that he had undertaken; a fresh date was fixed for Monday 29 May 2000 at 9:30 am. 4 On 26 May 2000, the Friday preceding the Monday on which the examination was due to commence, Messrs Kelly and Co, the solicitors for Southern Hotels Pty Ltd, ("Southern Hotels") a substantial creditor in the bankrupt's estate and one of the protagonists in the Supreme Court proceedings, filed a document styled "Notice of Motion". Southern Hotels can be loosely referred to as Mr Temple's parents' company, although the bankrupt, through a trust, was said to have a 20 per cent interest in the company. On the next line of the documents, immediately below those words "Notice of Motion" was the endorsement "(Order 19 rule 2)" which was an obvious reference to Order 19 of the Rules of Court that have been made under the Federal Court of Australia Act 1976 (Cth). The title of the document and reference to O 19 were incorrect in the circumstances of this case. Order 77 of the Federal Court Rules is the Order that applies to a proceeding in the Court to which the Bankruptcy Act applies: see O 77 r 4(1). That Order does provide, in subr 4(2), that the other Orders of the Rules will apply but only "so far as they are relevant and not inconsistent with this Order …". Thus it may be appropriate in a case where substantive proceedings are on foot to use a notice of motion even though the substantive proceedings relate in some way to a bankruptcy matter. Order 77 r 6 however states that: "6(1) Unless otherwise provided in this Order, a proceeding to which this Order applies must be commenced by filing an application in accordance with Form 5. 6(2) The application must state each section of the Bankruptcy Act under which the proceeding is brought."