Case: Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 195
Outcome: cited
Further detail concerning relevant events is given in the following chronology: CHRONOLOGY Date Event 2003/2004 Mr Rogers and Livingspace Holdings, borrowed monies from ALCPL. The monies were secured by, amongst other things, guarantees from Mr Rogers, Mrs Rogers and Ms Braas. 13.07.04 ALCPL, by its solicitors, issued a Letter of Demand to Mr Rogers demanding repayment of his indebtedness to it under his guarantee. 20.07.04 Mr Rogers commenced proceeding QUD136/2004 against the present First to Sixth Respondents. The parties appeared before Justice Spender on 28 July 2004, and the proceedings were adjourned to 10 August 2004. 04.08.04 Proceeding QUD136/2004 settled pursuant to the terms of a Deed of Settlement ("First Deed") executed by the parties, including the Applicant and Ms Brass. Proceeding QUD136/2004 was discontinued by Mr Rogers as provided for under the First Deed. 08.11.04 Mr Rogers commenced proceeding QUD224/2004 against the present First to Sixth Respondents, seeking substantially the same relief claimed by him in QUD136/2004. 08.12.04 Proceeding QUD224/2004 heard by Justice Spender, who declined to make interim orders in terms of those sought by Mr Rogers. His Honour made directions for the future conduct of the proceeding and set it down for hearing for 4 days commencing 23 May 2005. 20.12.04 Mr Rogers commences proceeding QUD275/2004 by way of an appeal against Justice Spender's decision on 8 December 2004 to refuse to grant the interlocutory relief sought in QUD224/2004. 23.02.05 Mr Rogers declared bankrupt on the petition of Dale &amp; Myers Timber Trade Centre Pty Ltd. 01.03.05 The solicitors for the Respondents to QUD224/2004 request Mr Rogers' trustee in bankruptcy to make an election pursuant to s 60 Bankruptcy Act 1966 (Cth) (" Bankruptcy Act "). 08.09.05 Mrs Rogers consents to judgment against her in favour of ALCPL in proceeding 1600/2005 in the New South Wales Supreme Court. By these proceedings the Second Respondent sought possession a property at 2 Wommin Lake Crescent, Fingal Head. 06.10.05 Matter QUD224/2004 was struck out by Justice Spender on the basis that the action was deemed abandoned pursuant to s 60 Bankruptcy Act 1966 . 26.10.05 Matter QUD275/2004 was struck out by Justice Spender on the basis that the appeal was nugatory. 30.11.05 Mrs Rogers commenced proceeding QUD525/2005 against the First to Sixth Respondents, relying on virtually identical facts, matters and circumstances alleged by Mr Rogers in QUD136/2004 and QUD224/2004. 05.12.05 Mr Rogers applied to reinstate QUD224/2004. Justice Spender declined to reinstate the proceedings. 07.04.06 Mr Rogers commenced proceedings QUD130/2006, relying on virtually identical facts, matters and circumstances as those previously alleged by Mrs Rogers and him in previous matters in the Federal Court. 20.04.06 Justice Greenwood dismissed the application for interlocutory relief and reserved costs in proceeding QUD130/2006: Rogers v Asset Loan Co Pty Ltd &amp; Ors [2006] FCA 434. 12.10.06 The Respondents in proceeding QUD525/2005 apply for the proceeding to be dismissed or permanently stayed. Justice Spender reserved his decision. 07.12.06 Justice Collier dismissed the balance of proceeding QUD130/2006: Rogers v Asset Loan Co Pty Ltd &amp; Ors [2006] FCA 1708. 15.12.06 Mr Rogers commenced proceeding QUD504/2006 by way of an appeal against Justice Collier's decision in QUD130/2006. 23.02.07 Matter QUD504/2006 dismissed by Justice Greenwood: Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 195. 14.06.07 Mrs Rogers commenced proceeding QUD173/2007 against the First to Seventh Respondents, seeking virtually the same relief claimed in proceeding QUD525/2005 (which as at the time remained reserved by Spender J) and relief on the same facts, matters and circumstances. 30.08.07 Justice Spender dismissed proceeding QUD525/2005, with costs. Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 1371. 01.11.07 Justice Collier dismissed proceeding QUD173/2007, with costs. Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 1660. 08.11.07 Mrs Rogers commenced proceeding QUD375/2007 against the First to Seventh Respondents in which she seeks leave to appeal against the decision of Justice Collier in QUD173/2007. 19 In one of those earlier cases, Rogers v Asset Loan Co Pty Ltd &amp; Ors [2006] FCA 434 Greenwood J commented (at [48]): It may be that when Mr Rogers or his advisers formulate a statement of claim in the proceeding, a claim might emerge which, in terms of its material facts, reflects a claim within the exemption reliant upon conduct which involves a contravention of ss 52 , 51AC or 60 of the Trade Practices Act 1974 (Cth) independently of any of the former rights of the bankrupt in property which have become vested in the trustee. At the moment the material does not establish any such right. 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. 20 This comment was made with reference to that class of property which s 116(2)(g) of the Bankruptcy Act removes from property divisible amongst a bankrupt's creditors, namely: (2) Subsection (1) does not extend to the following property: ... (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; or (ii) in respect of the death of the spouse of the bankrupt or a member of the family of the bankrupt; and any damages or compensation recovered by the bankrupt (whether before or after he or she became a bankrupt) in respect of such an injury or wrong or the death of such a person. 21 In another of those earlier cases, Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 195 , which again came before Greenwood J, his Honour commented (at [44]): Moreover, if the services relied upon by Mr Rogers for the purposes of s 60 of the TPA are financial services as the pleading seems to suggest, s 51AF(1) provides that Part V of the Act within which s 60 falls 'does not apply to the supply, or possible supply, of services that are financial services'. The relevant statutory instrument regulating financial services is the [ASIC Act]. 22 These comments seem to have inspired Mr Rogers to give his perceived grievances different attire in the form of the present proceedings in the hope that they will prove less threadbare in law than has hitherto proved to be the case. Regard to Mr Rogers' affidavit of 1 November 2007 discloses that, in the main, those perceived grievances replicate those set out in statements of claim that he filed in earlier proceedings in this Court. An exception to this is a personal injuries damages claim based on alleged breaches of the ASIC Act . 23 Insofar as those perceived grievances are now presented in a different guise: (a) any cause of action under the ASIC Act that does not fall within s 116(2)(g) of the Bankruptcy Act is vested in Mr Rogers' trustee in bankruptcy; and (b) having regard to Mr Rogers' affidavit of 1 November 2007 and the other evidence upon which he relies, the following further observations made by Greenwood J in Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 195 remain apposite, even though the claim is now formulated by reference to the ASIC Act rather than the Trade Practices Act : (i) (at [45]) "In truth, Mr Rogers seeks to recover the lost value of the rights and entitlements he says he ought to have enjoyed by reason of the fulfilment of the promises of the relevant respondents in respect of each of the various property transactions pleaded in the statement of claim. Any such claim is vested in the trustee of the estate of Mr Rogers."; (ii) (at [55]) "Damages for anxiety or stress may, however, be consequential but severable in the sense of being capable of estimation without regard in the estimation , to the bankrupt's rights of property. The claim by Major Wilson [in Wilson v United Counties Bank Ltd [1920] AC 102] considered by Dixon J [in Cox v Journeaux (No. 2);(1935) [1935] HCA 48 ; 52 CLR 713 at 721] was emblematic of a consequential but severable claim which was capable of agitation by the bankrupt. If the damages are capable of estimation in such a way and are capable of being understood as severable from any claim on behalf of the trustee, it seems to me that the decision of the Full Court of the Federal Court of Australia in Bryant v Commonwealth Bank of Australia [(1997) 75 FCR 545] applying Cox v Journeaux (No. 2) contemplates that such a claim resides with the bankrupt even though it may be properly described as a consequential claim." (Emphasis in original; explanatory case references or citations added). 35 The reference to "the principle stated by Dixon J" is a reference to the reasons for judgment of his Honour in Cox v Journeaux (No. 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721 to which reference is made in the passage which I have quoted above from the reasons for judgment of Greenwood J in Rogers v Asset Loan Co Pty Ltd &amp; Ors [2007] FCA 195. 39 In Rogers v Asset Loan Co Pty Ltd [2007] FCA 195 , Greenwood J did no more than acknowledge a theoretical possibility, recognised in the authorities to which his Honour referred, of a severable personal injuries claim. As it transpires, Mr Rogers' endeavour to engage that theoretical possibility in practice is, at least as presently revealed, futile, in my opinion. 40 The Respondents have sought to have the substantive application dismissed pursuant to the powers conferred on the Court by s 31A of the Federal Court of Australia Act 1976 (Cth) (" Federal Court of Australia Act ").