Donnelly (Trustee), in the matter of Hancock (Bankrupt) v Porteous [2001] FCA 1288

FEDERAL COURT OF AUSTRALIA

Donnelly (Trustee), in the matter of Hancock (Bankrupt) v Porteous [2001] FCA 1288 PRACTICE AND PROCEDURE – application to dismiss a claim for relief in the proceeding – application to strike out statement of claim Federal Court Rules O 20 r 2 MAX CHRISTOPHER DONNELLY (TRUSTEE OF THE PROPERTY OF THE LATE LANGLEY GEORGE HANCOCK, A BANKRUPT) v ROSEMARIE PORTEOUS N 7891 of 2000 STONE J 5 SEPTEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7891 OF 2000

BETWEEN: MAX CHRISTOPHER DONNELLY (TRUSTEE OF THE PROPERTY OF THE LATE LANGLEY GEORGE HANCOCK, A BANKRUPT)

APPLICANT

AND: ROSEMARIE PORTEOUS

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 5 SEPTEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1) the notice of motion filed by the respondent on 6 June 2001 be dismissed; 2) the applicant have leave to file and serve a third amended statement of claim within 21 days; and 3) the respondent 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.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7891 OF 2000

BETWEEN: MAX CHRISTOPHER DONNELLY (TRUSTEE OF THE PROPERTY OF THE LATE LANGLEY GEORGE HANCOCK, A BANKRUPT)

APPLICANT

AND: ROSEMARIE PORTEOUS

RESPONDENT

JUDGE: STONE J

DATE: 5 SEPTEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The respondent's notice of motion filed on 6 June 2001 sought the following orders: 1) that the applicant's claim to a charge over the property known as 4-10 Bay Street, Double Bay, New South Wales (the 'Double Bay Property') be dismissed pursuant to Order 20 Rule 2; 2) that the applicant withdraw caveat No. 7585907C lodged on the Title to the Double Bay property within seven (7) days of the making of the Order; 3) that the applicant pay the costs of this motion. 2 Order 20 rule 2 of the Federal Court rules provides that: "Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding – (a) no reasonable cause of action is disclosed; (b) the proceeding is frivolous or vexatious; or (c) the proceeding is an abuse of the process of the Court the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding." 3 The applicant's claim to a charge over the Double Bay Property (as defined in the notice of motion) is made in the context of a claim that a payment of $5,500,000 to the respondent is void as against the applicant under s 120 in Pt VI the Bankruptcy Act 1966 (Cth). The further amended statement of claim alleges that the payment was made by Mr Lang Hancock in October 1988 to the respondent as trustee of the Rose and Lang Hancock Domestic Fund. The terms of that fund as set out in the statement of claim are as follows. "14. The following were terms of the [Lang and Rose Hancock Domestic] Fund that: