Duncan v National Australia Bank [2005] FCA 1644

FEDERAL COURT OF AUSTRALIA

Duncan v National Australia Bank [2005] FCA 1644

PRACTICE AND PROCEDURE – application to be joined as a respondent to the proceedings – where issues between existing parties determined by settlement – application dismissed. STEPHEN DUNCAN (TRUSTEE IN BANKRUPTCY) v NATIONAL AUSTRALIA BANK & ORS SAD 29 of 2005 LANDER J 10 NOVEMBER 2005 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 29 OF 2005

BETWEEN: STEPHEN DUNCAN (TRUSTEE IN BANKRUPTCY)

APPLICANT

AND: NATIONAL AUSTRALIA BANK

FIRST RESPONDENT

SHU MU TSENG

SECOND RESPONDENT

PETER IVAN MACKS

THIRD RESPONDENT

UNIVERSAL HOLIDAYS PTY LTD

FOURTH RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 10 NOVEMBER 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application by Andrew Morton Garrett as trustee of the Andrew Garrett Family Trust No 3 to be joined as a respondent to these proceedings is dismissed. 2. Paragraphs 5.3, 7 and 9 of the orders of the Court made on 9 September 2005 be discharged. 3. The proceeds from the sale of chattels sold or to be sold by the applicant the subject of the action be forthwith paid, after deduction of the auctioneers' reasonable and proper costs and any goods and services tax, but without any further deduction, to National Australia Bank Ltd by cheque made out to "Johnson, Winter & Slattery Trust Account". 4. The transfer of the furniture, effects and jewellery itemised in the valuation of James F Bruce dated 29 November 2002, and otherwise described in the schedule hereto to this order, to the second respondent by agreement dated 19 February 2004 be and is hereby declared to be void against Peter Ivan Macks in his capacity as the trustee of the bankrupt estate of Andrew Morton Garrett and against Stephen James Duncan in his capacity as trustee of the bankrupt estate of Averil Gaye Garrett, pursuant to section 120 of the Bankruptcy Act 1966. 5. Peter Ivan Macks and Stephen James Duncan shall pay to the second respondent the sum of $80,000 on account of consideration given for the assets referred to in paragraph 4 hereof. 6. The cross-claim brought by the fourth respondent against Mr Macks and Mr Tseng, dated 23 September, is dismissed. Further consideration of the application is adjourned. 7. I direct the third respondent to file and serve any amendment to the cross-claim that he may be advised in relation to any further directions in the matter by Friday, 18 November 2005. 8. I adjourn further consideration generally until Wednesday, 23 November 2005 at 9.15am. 9. I confirm that any further consideration of the matter thereafter be on 6 December 2005. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.