Gao v Official Trustee in Bankruptcy (as Trustee ofthe Bankrupt Estate of Zhu) [2002] FCA 1499 (29 November 2002)

Last Updated: 29 November 2002

FEDERAL COURT OF AUSTRALIA

Gao v Official Trustee in Bankruptcy (as Trustee of the Bankrupt Estate of Zhu)

[2002] FCA 1499

BANKRUPTCY - appeal dismissed - no error disclosed.

Bankruptcy Act 1966 (Cth)

Gao v The Official Trustee in Bankruptcy [2002] FCA 1363, referred to

Bietseen v Johnson (1989) 29 IR 336, applied

PENG YUAN GAO v THE OFFICIAL TRUSTEE IN BANKRUPTCY, AS TRUSTEE OF THE BANKRUPT ESTATE OF YU JING ZHU

V 397 of 2002

MARSHALL J

MELBOURNE

29 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 397 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	PENG YUAN GAO APPELLANT
AND:	THE OFFICIAL TRUSTEE IN BANKRUPTCY, AS TRUSTEE OF THE BANKRUPT ESTATE OF YU JING ZHU RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	29 NOVEMBER 2002
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 397 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	PENG YUAN GAO APPELLANT
AND:	THE OFFICIAL TRUSTEE IN BANKRUPTCY, AS TRUSTEE OF THE BANKRUPT ESTATE OF YU JING ZHU RESPONDENT

JUDGE:	MARSHALL J
DATE:	29 NOVEMBER 2002
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This is an appeal from a judgment of Federal Magistrate McInnes, delivered on 11 June 2002. His Honour dismissed an application made by the appellant on 1 May 2002 to the Federal Magistrates Court of Australia ("the FMC").

2 The appellant's application before the FMC was said to relate to the Bankruptcy Act 1966 (Cth) ("the Act"). The appellant represented himself before the FMC and before this Court, on appeal. In his submissions before both Courts he has been assisted by an interpreter as English is not his first language.

3 The orders sought by the appellant before the FMC were effectively that:

* the respondent be made a defendant in another proceeding in the Supreme Court of Victoria in which the appellant is the plaintiff; and

* contempt proceedings be taken against Yu Jing Zhu ("the bankrupt").

4 The learned Federal Magistrate rightly concluded that he had no jurisdiction to make the first order, the question of the joinder being a matter for the Supreme Court. His Honour referred to further orders that were sought by the appellant in his written outline of submissions. Those submissions appear to have been contained within affidavits sworn by the appellant on 1 May 2002 and 31 May 2002 respectively and establish no basis for any contempt proceeding against the bankrupt.

5 In the application filed with the FMC the following interim relief was sought:

"The property of 168 Hensworth Street Mulgrave must be sold as soon as possible by ITSA, or Commonwealth Bank or Sheriff [otherwise there is no funds of which would have been assessed available for applicant in satisfaction of the judgment at all]."

6 After referring to the first order sought by the appellant, the learned Federal Magistrate said at [12]:

"The further orders that are sought by the applicant are not clear on the material before me, but in the application it would appear that the applicant does seek orders in relation to the Mulgrave property, and in particular orders that the property be sold."

7 At [16], after reviewing the progress of the trustee's actions with respect to the bankrupt's estate, his Honour said that:

"I cannot see any conduct of the trustee at present which would justify the intervention of this court."

8 Ultimately, the learned Federal Magistrate dismissed the application. In my view, the application was rightly dismissed. It was completely without foundation. It sought relief from the FMC, which it was not empowered to give; relief which was a matter for the Supreme Court. Further, it sought purported relief in the nature of contempt, a matter that was not made out on any material put before the FMC.

9 The appellant's notice of appeal did not identify any legal error, which was allegedly made by the learned Federal Magistrate. His written submissions provided no coherent basis for any suggestion that his Honour fell into appealable error. Matters which were put to the Court by the appellant in oral submissions today also did not disclose any error in the reasoning of the learned Federal Magistrate.

10 Apart from seeking an order setting aside the order at first instance, the appellant sought an order that the Mulgrave property be sold. That property was sold before the appeal was heard; see Gao v The Official Trustee in Bankruptcy [2002] FCA 1363, per Sundberg J. It seems that the main issue sought to be ventilated in the appeal has evaporated with the passage of time, rendering the appellant's concerns moot; see Bietseen v Johnson (1989) 29 IR 336 at 338.

11 For the foregoing reasons the appeal will be dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 29 November 2002

Mr Gao represented himself.
Counsel for the Respondent:	Ms S Gatford
Solicitor for the Respondent:	Gadens Lawyers
Date of Hearing:	29 November 2002
Date of Judgment:	29 November 2002