FEDERAL COURT OF AUSTRALIA Beames (Bankrupt) v Aburn (Trustee in Bankruptcy) [2003] FCA 134 DOUGLAS MACLEOD BEAMES (BANKRUPT) v PETER ABURN (TRUSTEE IN BANKRUPTCY) Q 184 OF 2002 DOWSETT J 6 FEBRUARY 2003 BRISBANE IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 184 OF 2002 BETWEEN: DOUGLAS MACLEOD BEAMES (BANKRUPT) APPLICANT AND: PETER ABURN (TRUSTEE IN BANKRUPTCY) RESPONDENT JUDGE: DOWSETT J DATE OF ORDER: 6 FEBRUARY 2003 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of these proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY Q 184 OF 2002 BETWEEN: DOUGLAS MACLEOD BEAMES (BANKRUPT) APPLICANT AND: PETER ABURN (TRUSTEE IN BANKRUPTCY) RESPONDENT JUDGE: DOWSETT J DATE: 6 FEBRUARY 2003 PLACE: BRISBANE REASONS FOR JUDGMENT 1 The application in these proceedings, filed on 28 November 2002, seeks equitable relief and/or damages against the respondent, Peter Aburn, allegedly in his capacity as trustee in bankruptcy. The claim is said to be made pursuant to s 178 of the Bankruptcy Act 1996 (Cth), which claim is available only against such a trustee. It is common ground that the Official Trustee is in fact the trustee and that Mr Aburn, although he acted in the bankruptcy with the authority of the Official Trustee, is not the trustee. In those circumstances, as I understand it, it is common ground that the proceedings as presently constituted cannot succeed against him. The application will therefore be dismissed. 2 Given the early stage at which these proceedings have been disposed of, I do not consider that it would be appropriate to make an order for costs on an indemnity basis. I will order that the applicant pay the respondent's costs of these proceedings. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 4 March 2003 The Applicant appeared In Person. Solicitor for the Respondent: Tucker & Cowen Solicitors Date of Hearing: 6 February 2003 Date of Judgment: 6 February 2003