FEDERAL COURT OF AUSTRALIA
Ferella v Official Trustee in Bankruptcy (No 3) [2013] FCA 1399
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IN THE FEDERAL COURT OF AUSTRALIA |
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First Applicant GUSTAVO FERELLA Second Applicant | |
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AND: |
OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATES OF ANGELO FERELLA AND GUSTAVO FERELLA Respondent |
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT NOTES THAT:
1. The applicants have failed to comply with order 1 made on 19 August 2013 as extended by order 1 made on 18 November 2013, for the filing of affidavit evidence.
THE COURT ORDERS THAT:
2. In relation to the inquiry ordered on 6 June 2011, the applicants not be entitled to rely on any evidence other than the affidavits already filed in the proceeding, without leave of the Court.
3. The respondent file and serve all affidavits on which it proposes to rely in answer on or before 4.00 pm on 31 January 2014.
4. The proceeding stand over for further directions at 9.30 am on 24 February 2014.
5. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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NEW SOUTH WALES DISTRICT REGISTRY |
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GENERAL DIVISION |
NSD 1284 of 2009 |
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BETWEEN: |
ANGELO FERELLA First Applicant GUSTAVO FERELLA Second Applicant |
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AND: |
OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATES OF ANGELO FERELLA AND GUSTAVO FERELLA Respondent |
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JUDGE: |
YATES J |
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DATE: |
16 DECEMBER 2013 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
1 On 6 June 2011, I made an order pursuant to s 179(1) of the Bankruptcy Act 1966 (Cth) that an inquiry be held into the conduct of the respondent as trustee in bankruptcy of the applicants, in relation to a discrete matter referred to in the order. A subsequent appeal by the applicants was unsuccessful.
2 The matter came back before me on 22 July 2013, at which time I made an order that the proceeding, as well as an interim application filed by the applicants on 9 July 2013, stand over for directions on 19 August 2013. On 19 August 2013, the applicants’ interim application was dismissed by consent. On that day, I made an order that the applicants file and serve all affidavits on which they proposed to rely in relation to the inquiry, on or before 4.00 pm on 30 September 2013. I ordered that the proceeding stand over for further directions at 9.30 am on 18 November 2013. The applicants did not comply with the order for filing affidavits.
3 When the matter came back before me on 18 November 2013, the solicitor appearing for the applicants sought an extension of time. I granted that extension until 13 December 2013 and stood over the proceeding for further directions this morning. Once again, the applicants did not comply with the order for filing affidavits.
4 Every opportunity has been given to the applicants to put on evidence in support of the inquiry that has been ordered. There is already a body of evidence before the Court, adduced by the applicants, which was the basis for ordering the inquiry in the first place.
5 On 6 December 2013, the solicitor who acted and appeared for the applicants on 22 July 2013, 19 August 2013 and 18 November 2013 filed a notice of ceasing to act.
6 Mr Angelo Ferella has appeared in person this morning on behalf of the applicants. He has sought an adjournment of the proceeding to enable him to procure a report. Mr Ferella has produced an email from Mr Alan Scott referring to a conversation with Mr Ferella on 3 December 2013 about furnishing a report. However, as I understand the email, Mr Scott is unable to provide a report.
7 As I have indicated, every opportunity has been given to the applicants to put on additional evidence on which they might seek to rely in the inquiry. I am not prepared to grant any further time to enable that to be done.
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I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. |
Associate:
