Wilson v Official Trustee in Bankruptcy [2000] FCA 529 (7 April 2000)

Last Updated: 27 April 2000

FEDERAL COURT OF AUSTRALIA

Wilson v Official Trustee in Bankruptcy [2000] FCA 529

ERNEST ARTHUR WILSON AND PATRICIA LORRAINE WILLIAMS v OFFICIAL TRUSTEE IN BANKRUPTCY AND WELONA PTY LIMITED

N 311 OF 2000

MOORE J

7 APRIL 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 311 OF 2000

BETWEEN:	ERNEST ARTHUR WILSON FIRST APPLICANT PATRICIA LORRAINE WILLIAMS SECOND APPLICANT
AND:	OFFICIAL TRUSTEE IN BANKRUPTCY FIRST RESPONDENT WELONA PTY LIMITED SECOND RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	7 APRIL 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicants pay the first respondent's costs.

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 311 OF 2000

BETWEEN:	ERNEST ARTHUR WILSON FIRST APPLICANT PATRICIA LORRAINE WILLIAMS SECOND APPLICANT
AND:	OFFICIAL TRUSTEE IN BANKRUPTCY FIRST RESPONDENT WELONA PTY LIMITED SECOND RESPONDENT

JUDGE:	MOORE J
DATE:	7 APRIL 2000
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1 An application has been made to this Court for an order restraining the Official Trustee in Bankruptcy ("the Trustee") from dealing with the estate of the applicant and, as I apprehend it, the estate of Mr Wilson (of which Ms Williams is now the executrix) pending the consideration by the High Court of an application for special leave to appeal against a judgment of a Full Court of this Court given on 20 March 2000: [2000] FCA 304.

2 The Full Court refused leave to appeal against an order of Beaumont J dismissing an application as being an abuse of process: [1999] FCA 1483. The application sought an order setting aside a judgment of Sweeney J given on 10 December 1992 and in respect of which an appeal was heard and determined by a Full Court of this Court: see (1994) 122 ALR 585.

3 I have read the judgment of the Full Court of 20 March 2000 and the judgment of Beaumont J. In addition, I have read a judgment of Branson J of 12 March 1999: [1999] FCA 219, who heard and determined proceedings brought under the Bankruptcy Act 1966 (Cth). The proceedings before Branson J, at least in part, sought to agitate the same issue that has been pursued in various guises by the applicants, that is, the correctness or otherwise of the judgment of Sweeney J. I have also read the judgment of the Full Court of 21 September 1999: see [1999] FCA 1308, in an appeal against the judgment of Branson J.

4 The basis upon which the application for special leave is sought is not entirely clear. However, having regard to the submissions that have been made by Ms Williams and what is contained in the application for special leave to appeal, the application appears to be directed to the way in which the Full Court in its reasons for judgment of 20 March 2000 dealt with the evidence of Mr Farthing. He was a potential witness advanced by Ms Williams and Mr Wilson to establish a ground for setting aside the judgment of Sweeney J.

5 The evidence of Mr Farthing concerned the condition of the hotel, to which these various proceedings in a general sense have related, in 1984. The Full Court, in the present proceedings, dealt with whether that evidence might provide a basis for re-opening the judgment of Sweeney J. Ms Williams (and until his recent death, Mr Wilson as well) has persisted now for some years in this Court in seeking to establish, inter alia, that the amount due to Welona Pty Ltd (the lessor of the hotel and a creditor who has proved in the administration of the estates of Ms Williams and Mr Wilson) was not the amount determined by Sweeney J as the relevant amount. The approach of the Full Court in its consideration of Mr Farthing's evidence was to ask firstly, whether it was evidence known to the applicants at the time of the hearing before Sweeney J. The Full Court concluded it had been. Secondly, to ask whether it was evidence that would have made a difference in the sense of whether it would have produced a different result. The Full Court took the view that it would not have.

6 I am not satisfied that the way in which the Full Court dealt with the fresh evidence of Mr Farthing is attended with any doubt. In my view, the prospects of Ms Williams succeeding in her application for special leave are remote in the extreme.

7 I have been informed by Ms Williams of the consequences of not making an order of the type sought (assuming that the Court has jurisdiction to do so - a matter about which I some doubt given that what is sought is not simply an order staying the order of the Full Court but rather, injunctive relief restraining the Trustee taking steps that otherwise would be taken in relation to the administration of the two estates). However I do not propose to grant the relief even though the effect of doing so either will be or, at the least, may be the sale of the property which Ms Williams seeks to preserve by the making of this application. I propose to dismiss the application and I so order.

8 I order that the applicant pay the respondent's costs, that is, the costs of the Trustee.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 7 April 2000

The second applicant appeared in person.
Solicitor/advocate for the first respondent:	Mr M Murray
There was no appearance for the second respondent.
Date of Hearing:	7 April 2000
Date of Judgment:	7 April 2000