Case: Fletcher &amp; George (No 5) [2008] FMCA 1628
Outcome: cited
Any further or such order the Court deems fit. 4 The application before me arises from a hearing in the substantive proceedings on 18 November 2008 before Burnett FM, where Ms George sought a stay of hearing of particular matters listed for hearing on 8 December 2008. The matters Ms George sought to have stayed in the substantive proceedings were as follows: 1. The Heads of Agreement dated 19 February 2008 remain valid and enforceable. 2. As at 24 February 2006, the legal and beneficial ownership of lot 30 on SP145714 County of Stanley, Parish of Moggill, title reference 50440445 (the Landing Place property) vests in the applicant as trustee of the bankrupt estate. 3. There is no trust in favour of Alexandra George, the bankrupt, or any other person in respect of the Landing Place property; and 4. As at 24 February 2006 the legal and beneficial ownership of items listed in schedule A vests the trustee of the bankrupt estate. 5 These matters related to paras 1, 2, 3 and 8 of the trustee in bankruptcy's Amended Application filed 7 November 2008. 6 The application for a stay in the substantive proceedings before his Honour resulted from the commencement of separate proceedings by Ms George in the Supreme Court of Queensland (the Supreme Court proceedings) in April 2008. The Supreme Court proceedings involved claims by Ms George for declarations that she was trustee for her son in respect of property the subject of the substantive proceedings, in particular the Landing Place property. I note that the learned Federal Magistrate found (at [9]) that there was a common substratum of facts and issues arising in relation to claims by Ms George in the Supreme Court of Queensland, and claims by the trustee in bankruptcy in the substantive proceedings. This finding is not disputed by the respondents before me, although in Court this morning Ms George disputed his Honour's finding that she was not necessarily in disagreement with this finding. I understand from submissions of Counsel for the trustee in bankruptcy that, after the trustee in bankruptcy was joined as a party to the Supreme Court proceedings by order of the Court, there was commonality between the parties to the Supreme Court proceedings and the parties to the substantive proceedings. The joinder of the trustee in bankruptcy to the Supreme Court proceedings is not in dispute. 7 The application brought by Ms George before his Honour for a stay of the substantive proceedings was listed for hearing before his Honour on 18 November 2008. It is not in dispute that, on that morning, Ms George applied for an adjournment of the stay application for a number of reasons including (in summary) a power cut which had affected her ability to be ready for the hearing, the fact that she had been served with material by the respondents approximately 2 hours 20 minutes late, and that she was ill on that day with medical certificates to support that assertion. 8 The Federal Magistrate refused to adjourn the hearing of Ms George's application for a stay and, after hearing the application, refused it. His Honour's reasons appear in Fletcher &amp; George (No 5) [2008] FMCA 1628. Fletcher &amp; George (No 5) 9 In dismissing the application for a stay of the substantive proceedings the key findings of his Honour can be summarised as follows: &#8226; There are presently on foot in the Federal Magistrates Court and the Supreme Court of Queensland proceedings which press common matters. The determination of title to the Landing Place property by either the Federal Magistrates Court or the Supreme Court of Queensland would determine the ultimate issues. If the title were properly attributable to the bankrupt the assets would vest in the trustee in bankruptcy; alternatively if the property were held by the bankrupt on trust other rights would follow (at [9]-[10]). &#8226; It was accepted by all parties save Ms George that the Federal Magistrates Court and the Federal Court were invested with exclusive jurisdiction under the Bankruptcy Act 1966 (Cth) ("Bankruptcy Act"), and that the Supreme Court has no jurisdiction in respect of such matters (at [11]). His Honour referred to Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2008] FCAFC 172 as authority for the proposition that contests concerning matters within s 31 Bankruptcy Act fall within the exclusive jurisdiction of the federal courts. His Honour found that the matter of real property and chattels as particularised in paras 1, 2, 3 and 8 of the Amended Application filed 7 November 2008 involved questions of determining the title of the trustee in bankruptcy and must be settled in the federal courts, or alternatively falls within the accrued jurisdiction of the courts (at [13]). Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 and Philip Morris Inc v Adam P Brown Fashions Pty Ltd [1981] HCA 7 ; (1981) 148 CLR 457 were also relevant authorities. &#8226; Notwithstanding the absence of commonality of parties because at that time the trustee in bankruptcy was not a party to the Supreme Court proceedings, the interest of the trustee in bankruptcy in the Supreme Court proceedings had been flagged and identified, and the trustee in bankruptcy has reserved his position. (As I have already observed the trustee in bankruptcy was subsequently joined to the Supreme Court proceedings by order of that Court.) &#8226; On the basis that the Federal Magistrates Court was the proper Court to hear the matter involving dispute as to ownership of, inter alia , the Landing Place property, the application for a stay was refused. &#8226; In relation to submissions of Ms George with respect to the pleadings not having been closed, and that there were further issues to be raised in the pleadings, his Honour found: o the trial in the substantive proceedings raised substantially the same issues that have been the subject of pleadings and interlocutory steps in the Supreme Court proceedings; o although Ms George claimed that she wished to amend her statement of claim again, as the plaintiff in the proceedings before the Supreme Court she had had significant opportunity since the commencement of that action to articulate her claim, and strictly speaking her cause of action notionally arose at the time of her bankruptcy three years ago; o the proceedings before the Federal Magistrates Court and the Supreme Court had an extensive history. Delays appeared largely to have been occasioned by the desire of Ms George to amend pleadings and raise new issues; o Ms George was a capable and articulate person, not in employment, and with ample time to prepare the case in the substantive proceedings; o evidence in the Supreme Court proceedings could be used in the substantive proceedings. &#8226; The rights of the parties required resolution, particularly since Ms George had been bankrupt for almost three years and the costs to creditors were escalating. It was appropriate that the matter should proceed to trial on the due date.