Wilson, in the matter of Wilson v Official Trustee in Bankruptcy (No 1) [2000] FCA 1039 (18 July 2000)

Last Updated: 7 August 2000

FEDERAL COURT OF AUSTRALIA

Wilson, in the matter of Wilson v Official Trustee in Bankruptcy (No 1)

[2000] FCA 1039

IN THE MATTER OF THE BANKRUPT ESTATES OF ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS

ERNEST ARTHUR WILSON & ANOR v OFFICIAL TRUSTEE IN BANKRUPTCY & ANOR

N 8402 OF 1999

EMMETT J

18 JULY 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8402 OF 1999

IN THE MATTER OF THE BANKRUPT ESTATES OF ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS

BETWEEN:	ERNEST ARTHUR WILSON (DECEASED) FIRST APPLICANT
	PATRICIA LORRAINE WILLIAMS SECOND APPLICANT
AND:	OFFICIAL TRUSTEE IN BANKRUPTCY FIRST RESPONDENT
	DONALD WIGGINS AND KEVIN ROBINSON ESTATES OF AUSTIN AND RENE WIGGINS SECOND RESPONDENTS
JUDGE:	EMMETT J
DATE OF ORDER:	18 JULY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicants' notice of motion filed 16 June 2000 be dismissed.

2. The applicants pay the respondents' 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 8402 OF 1999

IN THE MATTER OF THE BANKRUPT ESTATES OF ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS

BETWEEN:	ERNEST ARTHUR WILSON (DECEASED) FIRST APPLICANT
	PATRICIA LORRAINE WILLIAMS SECOND APPLICANT
AND:	OFFICIAL TRUSTEE IN BANKRUPTCY FIRST RESPONDENT

	DONALD WIGGINS AND KEVIN ROBINSON ESTATES OF AUSTIN AND RENE WIGGINS SECOND RESPONDENTS
JUDGE:	EMMETT J
DATE:	18 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 23 February 2000 the applicants filed a notice of motion seeking, inter alia, the following order:

"That the Notice of Motion filed on the 18 February 2000 in the above matter by the Second Respondent be struck out pursuant to Order 20 Rule 1 of the Federal court [sic] Rules."

Notice of motion was subsequently filed by the second respondents on 14 March 2000 seeking an order that the application be struck out pursuant to Order 21 Rule 1 and Order 11 Rule 16. When the motion filed on 23 February 2000 came before me I ordered that it be struck out and ordered the applicants to pay the respondents' costs of that motion, on the basis that there was no such motion that had been filed on 18 February 2000.

2 I now have before me a notice of motion, amended by leave given by me today, seeking an order revoking the order for the costs of the motion of 23 February 2000. The basis upon which I am asked to vary the order is that Ms Williams was misled into filing the motion of 23 February 2000 by a statement made by the solicitor for the second respondents in a letter of 16 February 2000 enclosing a draft notice of motion saying that the notice of motion would be filed at court on Friday, 18 February 2000.

3 As I have said, the notice of motion was not in fact filed on 18 February 2000. In the meantime, however, Ms Williams, assuming that the threat contained in the letter of 16 February 2000 would be carried out, filed her notice of motion seeking that the threatened motion be struck out. When I ordered that the motion of 23 February 200 be struck out with costs, I did so on the basis that there was no motion that could be struck out. In fact there was no basis at all upon which the applicants could have succeeded in striking out the motion filed on 14 March 2000. That motion was subsequently amended, following the amendment of the application, to seek the striking out of the amended application. Even if the motion of 23 February 2000 had been amended to refer to the motion of 14 March 2000 instead of the motion of 18 February 2000 it would have failed and I would have ordered that it be dismissed with costs.

4 In other words, had I heard the substance of the motion, rather than dealing with it by reason of its irregularity in form, the result would have been the same. Accordingly, I see no reason to vary the orders that I made on 24 March 2000. Accordingly, I dismiss the motion filed on 16 June 2000 and order the applicant to pay the costs of that motion.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 31 July 2000

The second applicant appeared in person on her behalf and as the legal personal representative of the estate of the first applicant.
Solicitor for the First Respondent:	Mr M Murray for the Australian Government Solicitor
Counsel for the Second Respondents:	Mr A J L Ogborne
Solicitor for the Second Respondents:	Sally Nash & Co
Date of Hearing:	18 July 2000
Date of Judgment:	18 July 2000