Badcock v Adelaide Bank Limited & Anor [2010] FMCA 35 (28 January 2010)

Federal Magistrates Court of Australia

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Badcock v Adelaide Bank Limited & Anor [2010] FMCA 35 (28 January 2010)

Last Updated: 29 January 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BADCOCK v ADELAIDE BANK LIMITED & ANOR

[2010] FMCA 35

BANKRUPTCY – No proper cause of action disclosed – application dismissed.

Financial Sector (Business Transfer and Group Restructure) Act 1999, s.22

Adelaide Bank Limited v Badcock [2002] FMCA 10 Badcock v Ambrose [2006] FCA 1372 Badcock v Pricewaterhousecoopers (Reg) & Anor [2006] SADC 101 Badcock v Pricewaterhousecoopers & Anor [2006] SASC 346

Applicant:

ROBERT JOHN BADCOCK

First Respondent:

ADELAIDE BANK LIMITED (ACN 061 461 550)

Second Respondent:

BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178)

File Number:

ADG 198 of 2009

Judgment of:

Simpson FM

Hearing date:

2 December 2009

Date of Last Submission:

2 December 2009

Delivered at:

Adelaide

Delivered on:

28 January 2010

REPRESENTATION

Counsel for the Applicant:

Self-represented

Counsel for the Respondents:

Mr Robertson

Solicitors for the Respondents:

Piper Alderman

ORDERS

(1) The application be dismissed.
(2) The applicant pay the respondent’s costs of, and incidental to, the proceedings, such costs to be agreed between the parties within fourteen (14) days or, failing such agreement, referred to a Registrar of this Court to be taxed pursuant to Order 62 of the Federal Court Rules 1979 (Cth).

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE

ADG 198 of 2009

ROBERT JOHN BADCOCK

Applicant

And

ADELAIDE BANK LIMITED (ACN 061 461 550)

First Respondent

BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178)

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an Amended Application in which the applicant seeks the following orders:
   • 1. The Creditor’s Petition dated 19 September 2001 is set aside.
   • 2. The Federal Magistrates Court order dated 21st December 2001 is set aside.
   • 3. The Insolvency Trustee Service of Australia is ordered to clear all public records naming the applicant.
   • 4. The financial position between the applicant and the respondents is to be agreed or determined by the court.
   • 5. The respondents are jointly and/or severally liable for the applicant’s costs to be agreed or taxed.
   • 6. Any other order the Honourable Court deems fit or appropriate.
2. When the proceedings were commenced on 22 July 2009 the only respondent was Adelaide Bank Limited (ACN 061 461 550) (“Adelaide Bank”). On 3 September 2009 Adelaide Bank filed a Notice Stating Grounds of Opposition, which notice stated that the application was opposed as Adelaide Bank was not the correct party to be made respondent, the applicant did not have standing to bring the proceedings, the application was frivolous, vexatious or otherwise an abuse of process and was out of time. An Affidavit of Mr Andrew Robertson, a partner of the firm of solicitors acting for the respondent, filed on 3 September 2009 indicated that on or about 1 December 2008 Adelaide Bank had transferred all its assets and liabilities to Bendigo and Adelaide Bank Limited (ACN 068 049 178) (“Bendigo Bank”) and as such on or about 1 December 2008 Bendigo Bank became the successor at law of Adelaide Bank pursuant to s.22 of the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth).
3. With the agreement of the parties and Bendigo Bank, on 8 September 2009 I made an order that Bendigo Bank be joined as second respondent to the proceedings. I then made an order that the respondents’ application that the proceedings be dismissed on the basis that the applicant did not have standing to bring the proceedings be listed for argument on 13 October 2009.
4. The applicant has at all times been unrepresented. After hearing argument on 13 October 2009 I considered it appropriate to allow the applicant leave to file an Amended Application and Supporting Affidavit. I had hoped that the amended documents would properly identify the applicant’s cause or causes of action and the party or parties against whom those causes of action were to be brought.
5. The applicant was given fourteen days to file and serve the amended documents. The respondents were given a further fourteen days to file and serve their Response and Responding Affidavits. The matter was adjourned for further submissions to 2 December 2009.
6. The applicant filed his Amended Application and Further Affidavit on 26 October 2009. The applicant also filed written submissions on 2 December 2009.

Background

7. The background to the applicant’s current proceedings is helpfully provided in the Affidavit of Mr Robertson previously referred to. He says that the applicant was made bankrupt on 21 December 2001 with Adelaide Bank as petitioning creditor. He says that the applicant subsequently applied for a Review of the Registrar’s decision and that on 30 January 2002 Federal Magistrate Raphael delivered his reasons for deciding not to set aside the sequestration order.[1]
8. Mr Robertson obtained and annexed to his Affidavit an extract from the National Personal Insolvency Index database dated 1 September 2009[2], which indicates that the applicant remains an undischarged bankrupt.
9. Mr Robertson also deposes to the fact that in or about 2006 the applicant commenced proceedings against the Trustee in Bankruptcy, Mr Ambrose, which proceedings were heard by Justice Finn. His Honour dismissed the applicant’s application on 16 October 2006 and delivered Reasons.[3]
10. Mr Robertson deposes to the fact that the factual findings of Justice Finn indicate that those proceedings sought to agitate issues the subject of or similar to the applicant’s application in the current proceedings, namely annulment of his bankruptcy and restraining individuals and other legal entities from disseminating information about his bankruptcy. Justice Finn was unable to identify any proper cause of action and dismissed the proceedings.
11. Mr Robertson also deposes to the fact that the applicant also brought proceedings against Pricewaterhousecoopers (Reg) & Anor in the District Court, which proceedings were heard by Judge Simpson. Those proceedings were an appeal by the applicant against a decision of a Master refusing relief sought by the applicant and dismissing the action on grounds that the plaintiff was an undischarged bankrupt. Her Honour dismissed the applicant’s appeal on 1 September 2006 and delivered her Reasons.[4]
12. The applicant then appealed Judge Simpson’s decision to the Supreme Court. That appeal was heard by Justice Debelle on 14 November 2006 at which time His Honour dismissed the appeal and delivered Reasons.[5]

Decision

13. Dealing with the particular orders that the applicant seeks in his Amended Application filed on 26 October 2009, I make the following points:
    1. “The Creditor’s Petition dated 19 September 2001 is (sic) set aside”; and
    2. “The Federal Magistrates Court order dated 21st December 2001 is (sic) set aside”

These applications can conveniently be dealt with together.

The material filed by the applicant seems to suggest that he believes that these orders should be made as matters not previously raised (eg. the quantum of relevant securities, the sale value of assets, details of underselling, the suggestion that receivership records were not provided to him etc.) justify revisiting the question of whether the sequestration order should ever have been made.

If these paragraphs seek orders setting aside the sequestration order, they should be dismissed. The applicant exhausted his ability to challenge the sequestration order when he decided not to appeal the decision of Federal Magistrate Raphael confirming the validity of the sequestration order made by the Registrar.

100. “The Insolvency Trustee Service of Australia is ordered to clear all public records naming the applicant”

Not only is the Insolvency Trustee Service of Australia not a party to these proceedings (and therefore no order should be made against it), it is not appropriate that such an order be made.

4. “The financial position between the applicant and the respondents is to be agreed or determined by the court”

This proposed order is so vague as to be meaningless. The material provided does not allow me to identify what it is that the applicant seeks. The application insofar as it relates to this proposed order should be dismissed.

5. “The respondents are jointly and/or severally liable for the applicant’s costs to be agreed or taxed”

There is no proper basis for this order and it should be dismissed

6. “Any other order the Honourable Court deems fit or appropriate”

Apart from dismissing the application, the only other appropriate order is that the applicant pay the respondents’ costs to be agreed or taxed.

14. I make the orders to be found at the commencement of these Reasons.

I certify that the preceding 14Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fourteenfourteen (14) paragraphs are a true copy of the reasons for judgment of Simpson FM

Associate: Ms N. Julius

Date: 28 January 2010

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[1] Adelaide Bank Limited v Badcock [2002] FMCA 10.
[2] Annexure AGJR3 to the Affidavit of Mr Robertson filed on 3 September 2009.
[3] Badcock v Ambrose [2006] FCA 1372.
[4] Badcock v Pricewaterhousecoopers (Reg) & Anor [2006] SADC 101.
[5] Badcock v Pricewaterhousecoopers & Anor [2006] SASC 346.