FEDERAL COURT OF AUSTRALIA

Bell v Taylor [2014] FCA 1033

THE COURT ORDERS THAT:

1.    The applicant is given leave to amend his originating application in the form dated 4 September 2014 save in so far as the amended application seeks to claim any injunction or stay of the execution of the orders made by the Supreme Court of Western Australia in CIV 2512 of 2011 and CIV 2567 of 2013 for the delivery of the vacant possession of the properties referred to in those orders and owned by the applicant.

2.    Order 4 of the Orders made on 19 August 2014 be varied so that the applicant file and serve submissions in support of the application and the minute of any proposed statement of claim by 4.00 pm on 8 October 2014.

3.    Orders 5 to 7 of the Orders made on 19 August 2014 are vacated.

4.    The matter be listed for a directions hearing at 10.15 am on 10 October 2014.

5.    Costs of today are reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The applicant, Mr Bell, has filed an originating application in which he seeks, inter alia, relief under s 178 and s 179 of the Bankruptcy Act 1966 (Cth) against the first respondent, Mr Taylor, Mr Bell’s trustee in bankruptcy (the trustee), and the rejection of the proof of debt of the second respondent, Commonwealth Bank of Australia.

2    Mr Bell has applied for leave to amend his originating application to include some further claims. One of the new claims which Mr Bell seeks to introduce is of importance for today’s purposes, because as I understand it, Mr Bell seeks interlocutory orders to be made today pursuant to the proposed amended claim. That claim is a claim for the stay of the execution of orders for vacant possession of Mr Bell’s properties that were made by the Supreme Court of Western Australia on the application of the mortgagee, Commonwealth Bank.

3    The Commonwealth Bank opposes Mr Bell’s application to amend his originating application to include that particular claim for relief because Mr Bell is an undischarged bankrupt, the properties in question have vested in the trustee pursuant to s 58 of the Bankruptcy Act and the trustee has not given his consent to the bringing of the claim sought to be introduced by Mr Bell. In those circumstances, said the Commonwealth Bank, Mr Bell has no standing to commence an application seeking relief in respect of the properties.

4    The Commonwealth Bank also argued that by seeking to amend his originating application so as to ventilate a claim for the stay of the execution of the Supreme Court orders for vacant possession, Mr Bell was in effect engaged in an abuse of process because Mr Bell had sought the same relief in an application which on 8 August 2014 was heard and dismissed by Gilmour J (Bell v Commonwealth Bank of Australia [2014] FCA 934).

5    Mr Bell contented that he did not need the trustee’s consent to bring his application seeking to stay the Supreme Court orders for vacant possession. Mr Bell argued that pursuant to s 60(1)(b) of the Bankruptcy Act, when read with s 60(4) of that Act, he was entitled to bring the proposed claim in his own name and without the consent of the trustee.

6    However, in my view, on a proper construction of the Bankruptcy Act, even if s 60(1) applied after the making of a sequestration order, the power which the Court has in s 60(1) to stay the legal process there referred to, is subject, of course, to an applicant for such a stay having the standing to bring that claim. Since the claim which Mr Bell seeks to bring by his proposed amendment is in respect of the properties which are vested in the trustee, in the absence of the consent of the trustee, he has no standing to bring such a claim. Therefore, s 60(1)(b) of the Bankruptcy Act is of no assistance to Mr Bell.

7    Also, s 60(4) of the Bankruptcy Act, to which Mr Bell referred during argument, does not apply to Mr Bell’s amendment application. Section 60(4) does refer to circumstances when a bankrupt person may continue proceedings in his or her own name after a sequestration order has been made, but that section only applies in respect of proceedings of the kind referred to in s 60(4)(a) and (b). The claim for the stay of the Supreme Court orders which Mr Bell seeks to bring by amending his originating application does not fall within the ambit of s 60(4).

8    Accordingly, Mr Bell’s argument founded on s 60 of the Bankruptcy Act is rejected.

9    Secondly, I accept the Commonwealth Bank’s submission that by seeking to amend and pursue an application to stay the Supreme Court orders, Mr Bell impermissibly seeks to re-ventilate the matters which were heard and dismissed by Gilmour J.

10    Mr Bell said that he did not run his argument on s 60 of the Bankruptcy Act in his application before Gilmour J. However, Mr Bell had the opportunity to run any arguments he liked before Gilmour J. The fact that he did not run his s 60 argument, does not, in my view, constitute a sufficient circumstance to permit him to seek to re-litigate another claim for the same relief a few weeks later. As I mentioned to Mr Bell during argument, Mr Bell’s remedy appears to lie in seeking to appeal the previous decision rather than seeking to re-ventilate the same matter again before a different judge of this Court.

11    In any event, Mr Bell has now run his s 60 argument before this Court and, as I have said, there is no substance in the argument.

12    Accordingly, I am content to give leave to Mr Bell to amend his originating application, save that the amended application may not include any claim for relief seeking to stay or enjoin, however one characterises it, the implementation or the execution of the vacant possession orders which have been made by the Supreme Court of Western Australia in respect of Mr Bell’s properties.

Associate:

Dated:    23 September 2014