Fodare Pty Limited v Official Trustee in Bankruptcy [2000] FCA 1721

FEDERAL COURT OF AUSTRALIA

Fodare Pty Limited v Official Trustee in Bankruptcy [2000] FCA 1721 APPEAL – application to adduce further evidence after delivery of Full Court judgment – whether case now sought to be raised arose in consequence of the judgment on appeal – whether Order 52 r 36 complied with – whether case now sought to be raised should have been raised at first instance – whether there was adequate explanation for failure to raise the matter at first instance – whether, had the evidence been adduced at the trial, a different result would have ensued – public interest in the finality of litigation BANKRUPTCY – void settlement under s 120(1) Bankruptcy Act 1966 (Cth) – entitlement to interest – entitlement in trustee to a charge upon property to secure the payment of the judgment debt COSTS – where applicant only partially successful on appeal – whether individual respondents were necessary parties

Bankruptcy Act 1966 (Cth) ss 120(1), 139ZQ, 139 ZR Federal Court Rules (Cth) O 35 r 8, O 52 r 36, Official Trustee in Bankruptcy v Alvaro (1996) 66 FCR 372 FODARE PTY LIMITED AND DORIS EMILY ELIZABETH MILLER AND KATHLEEN ANNE HIRTZELL AND KEVIN TUBB v OFFICIAL TRUSTEE IN BANKRUPTCY AND OFFICIAL RECEIVER N 400 OF 2000 LEHANE, HELY & CONTI JJ 29 NOVEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 400 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: FODARE PTY LIMITED

(ACN 003 722 147)

FIRST APPELLANT

DORIS EMILY ELIZABETH MILLER

SECOND APPELLANT

KATHLEEN ANNE HIRTZELL

THIRD APPELLANT

KEVIN TUBB

FOURTH APPELLANT

AND: OFFICIAL TRUSTEE IN BANKRUPTCY

FIRST RESPONDENT