Federal Court of Australia
Collins (Trustee) in the matter of bankrupt estate of Hookey v Hookey [2024] FCA 855
ORDERS
GERALD THOMAS COLLINS AND DAVID JON BRUSHE AS TRUSTEES FOR THE BANKRUPT ESTATE OF SCOTT GREGORY HOOKEY Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The time for compliance with order 2 of the orders made on 14 May 2024 (Orders), being the time by which the applicant is to file any further evidence in chief upon which they seek to rely at the hearing of the proceeding, be extended to 4:00pm AEST on 2 August 2024.
2. The time for compliance with order 6 of the Orders, being the time by which the applicant is to file and serve an outline of submissions, be extended to 4:00pm AEST on 5 August 2024.
3. The time for compliance with order 7 of the Orders, being the time by which the respondent is to file and serve an outline of submissions, be extended to 4:00pm AEST on 19 August 2024.
4. The time for compliance with order 8 of the Orders, being the time by which the applicant is to file and serve an outline of submissions in reply, be extended to 4:00pm AEST on 26 August 2024.
5. Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
MEAGHER J
introduction
1 By an interim application filed on 22 July 2024, the applicants apply to vary trial programming orders to receive an extension of time for the filing of further evidence in chief and the parties’ submissions.
2 The applicants are Mr Gerald Thomas Collins and Mr David Jon Brushe as trustees for the Bankrupt Estate of Mr Scott Gregory Hookey. The respondent is Mr Hookey’s wife, Ms Lisa Jane Hookey, both in her in personal capacity and in her capacity as the trustee of the MIA Family Trust.
3 The substantive matter was commenced by an application filed on 22 April 2024 seeking, inter alia, declaratory relief that the respondent holds 100% of her interest in a property on resulting or constructive trust for the applicants. The applicants also claim that the transfers of money of $3,411,850 between Mr Hookey’s bank account and Ms Hookey’s bank account were void pursuant to ss 120 or 121 of the Bankruptcy Act 1966 (Cth).
4 For the following reasons, the application is allowed.
background
5 On 14 May 2024, I made programming orders which relevantly provided (Orders):
2. By 4:00pm AEST on 31 May 2024, the Applicant file any further evidence in chief upon which they seek to rely at the hearing of the proceeding.
3. By 4:00pm AEST on 21 June 2024, the Respondent file any evidence in chief upon which she seeks to rely at the hearing of the proceeding.
4. By 4:00pm AEST on 1 July 2024, the Applicant file any evidence in reply.
5. By 4:00 pm AEST on 15 July 2024, the Parties file and serve on each other party any objections to evidence.
6. By 4:00pm AEST on 22 July 2024, the Applicant file and serve an outline of submissions.
7. By 4:00pm AEST on 5 August 2024, the Respondent file and serve an outline of submissions.
8. By 4:00pm AEST on 19 August 2024, the Applicant file and serve an outline of submissions in reply.
6 The respondent did not file any evidence in chief by 21 June 2024. To date, the respondent has not filed any evidence in chief. However, it should be noted that the respondent has only recently obtained representation in the proceeding, as evidenced by a Notice of Acting filed on 31 July 2024.
7 By the interim application, the applicants seek the following orders:
1. Pursuant to rule 1.32 of the rules, the Order of Justice Meagher be varied as follows:
“6. By 4:00pm AEST on 5 August 2024, the Applicant file and serve an outline of submissions.
7. By 4:00pm AEST on 19 August 2024, the Respondent file and serve an outline of submissions.
8. By 4:00pm AEST on 26 August 2024, the Applicant file and serve an outline of submissions in reply.”
2. Such further orders as the Court considers appropriate.
3. Costs be reserved.
8 Mr Glenn William McFarlane, solicitor for the applicants, deposed that while counsel was drafting the applicants’ submissions in accordance with order 6 of the Orders, he identified that a further affidavit ought to be filed. This is because, upon review of the material, evidence revealed that many of the funds that were transferred to the respondent’s bank account were then transferred into a bank account by the name of Hookey Group International Pty Ltd (HGI). The respondent is the sole director and shareholder of HGI. Mr McFarlane also annexed HGI’s balance sheet and deposed that:
The further evidence will provide documentary evidence of the transfers and the company’s balance sheet which reveals Hookey Group International is indebted to the Respondent (by way of loan account) in the order of $4.5 million.
9 As the respondent has not filed any evidence, the applicants submitted that it is appropriate that the evidence be produced by them. Accordingly, the applicants submitted that a further order is sought, namely that order 2 of the Orders be varied so that the applicants have until 4:00pm AEST on 2 August 2024 to file any further evidence in chief.
10 The applicants contended that to the extent that the additional order now sought is beyond the first order of the interim application, it is an appropriate order pursuant to order 2.
11 The respondent did not put any submissions or affidavits in response to this interim application.
consideration
12 By r 1.32 of the Federal Court Rules 2011 (Cth), the Court is empowered to make any order it considers appropriate in the interests of justice. In this case, the extension of time sought is relatively brief and, importantly, does not compromise the trial dates. The evidence sought to be adduced is relevant to the proceeding, which relates to the funds transferred to the respondent’s bank account.
13 In those circumstances and having regard to the overarching purpose of civil practice as set out in s 37M of the Federal Court of Australia Act 1976 (Cth), it is appropriate that the interim application be allowed, including that the applicant file any further evidence in chief by 2 August 2024.
14 Orders will be made substantially in accordance with the orders sought by the applicants. Costs ought to be reserved.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher. |
Associate:
