Case: Rogers v Asset Loan Co Pty Ltd &amp; Ors [2006] FCA 434
Outcome: considered
I am presently concerned with two Notices of Motion filed in the principal proceedings between Lynne Maree Rogers v Asset Loan Co Pty Ltd &amp; Ors , being proceedings QUD525/2005. 2 Before dealing specifically with those Notices of Motion, it is helpful to set out the history of the matter. 3 The proceedings were last before the Court on 5 December 2005, when I heard an interlocutory application for an injunction restraining one of the respondents in these proceedings from taking possession of property. I made no orders on that date, and adjourned the application pending the outcome of proceedings in the New South Wales Supreme Court. 11 Greenwood J in Rogers v Asset Loan Co Pty Ltd &amp; Ors [2006] FCA 434 was concerned with applications for relief by Mr Rogers, who sought various orders, including interlocutory relief restraining the respondents from exercising a power of sale, and in respect of a number of loan agreements, deeds of settlement, mortgages, and other instruments relating to various properties. 12 Greenwood J found, as the respondents in that proceeding had submitted, that the majority of Mr Rogers' claims for final relief involved claims that related to the legal or beneficial interest of the applicant in property which vested in the trustee in bankruptcy, and accordingly in respect of which the applicant had no standing to institute legal proceedings pursuant to s 116(2)(g) Bankruptcy Act 1966 (Cth) (the Bankruptcy Act ): (g) any right of the bankrupt to recover damages or compensation; (i) for personal injury or wrong done to the bankrupt, the spouse of the bankrupt or a member of the family of the bankrupt; ... 13 In those proceedings, Greenwood J held, at [48]: ... The alleged contraventions of the Trade Practices Act 1974 (Cth) which are mere conclusionary assertions are relied upon as the basis for final orders with respect to the interests of the bankrupt in property which interests have become vested in the trustee. 14 His Honour also concluded that a claim by Mr Rogers for interlocutory relief in the form of "an order that the respondents do not harass, intimidate or coerce the applicant, his family or neighbours" was not a claim called in aid of a claim for final relief within the scope of s 116(2)(g) of the Bankruptcy Act . 15 After the judgment of Greenwood J, Mr Rogers filed an Amended Statement of Claim on 19 June 2006, seeking, in conformity with observations of Greenwood J, to formulate a Statement of Claim so as to plead claims coming within the exemption of s 116(2)(g) of the Bankruptcy Act . 16 On 7 December 2006, Collier J held that the proceedings by Mr Rogers in QUD130/2006 commenced by application filed 7 April 2006 by Mr Rogers, and in which the Amended Statement of Claim was filed on 19 June 2006, be dismissed with costs. 17 Her Honour held that in respect of each of the applicant's claims, the applicant either did not have standing, or the claims were not actionable in the Federal Court, or the pleadings were deficient. Her Honour held that the applicant should not be given a further opportunity to replead, and dismissed the applicant's application. 18 The earlier proceedings by Mr Rogers, namely QUD224/2004, was the subject of orders by me on 6 October 2005. In that action, the Court ordered: 1. The action QUD 224/2004 is deemed abandoned by operation of s60(3) of the The Bankruptcy Act 1966 (Cth). 2. The proceeding is struck out. 3. No order as to costs. 19 The Statement of Claim relevant to the present motions seeks to canvass much of the material the subject of the orders of the Court in the previous proceedings. 36 I have analysed the extensive Statement of Claim in considerable detail. I have had regard to the reasons for judgment of Greenwood J in Rogers v Asset Loan Co Pty Ltd &amp; Ors [2006] FCA 434 and the reasons for judgment of Collier J in Rogers v Asset Loan Co Pty Ltd [2006] FCA 1708.