Case: Re Wakim; Ex Parte McNally &amp; Anor [1999] HCA 27 ; (1999) 198 CLR 511
Outcome: applied
I am not prepared to accept the submission that no question of Federal jurisdiction arises in relation to that matter. If appropriate affidavit material or a properly formulated statement of claim raised a question of relief based upon Federal causes of action such as contraventions of the Trade Practices Act 1974 (Cth) and a question arose justiciable at the suit of Mr Rogers (which presently seems unlikely) concerning compliance by the secured creditor with a State Act and that matter arose from a common substratum of fact giving rise to the Federal claims, the accrued jurisdiction of the Federal Court of Australia would be enlivened: Re Wakim; Ex Parte McNally &amp; Anor [1999] HCA 27 ; (1999) 198 CLR 511 at paragraphs [135] to [150]. 54 The question of whether the secured creditor has complied with pre-conditions to the exercise of power of sale is a matter to be considered by the trustee. So too is the question of whether the secured creditor in publishing advertisements for the sale of the property has mis-described the property at Moreton Street, Toogoom as simply land rather than land upon which a house is built. Ultimately, to the extent that there may be a surplus after realisation of the securities, the trustee has an interest on behalf of the unsecured creditors in that surplus or the interests of the bankrupt in that surplus. Similarly, to the extent that Mr Rogers has an interest in the Fingal Head property, that interest is vested in the trustee and no doubt the trustee would take steps to determine whether an order of the Supreme Court of New South Wales as entered properly reflects the order as made especially if giving effect to the order entered will prejudice the interests of the unsecured creditors. Mr Rogers contends that the order as made by His Honour based upon the notice of motion in the Supreme Court of New South Wales is not reflected in the terms of the order entered by the Respondents. Although Mr Rogers makes the assertion, the relevant material is not incorporated in the affidavit material. In any event, the issue is either one to be agitated by the trustee or a party who holds the interest affected by the conduct, which may be Mrs Lynne Rogers. 55 One further matter raised by the trustee concerns the precise status of the deed of settlement dated 8 September 2005. At the moment in time when Mr Rogers entered into that agreement he remained an undischarged bankrupt. His application for review had at that time been dismissed by Federal Magistrate Baumann, the Stay Order of 15 March 2005 had been discharged and Dowsett J had refused a further motion for a stay pending appeal. At 8 September 2005, when Mr Rogers entered into the deed of settlement, he had no standing to deal with any real or personal property of any description or any estate, interest or profit whether present or future, vested or contingent arising out of or incidental to any such real or personal property. Any rights and powers in relation to that property that would have been exercisable by Mr Rogers had he not become bankrupt, became, upon bankruptcy, property of the bankrupt divisible among the bankrupt's creditors and vested in the trustee. 56 It is not necessary for the present purposes to resolve the question of the status of the deed except to say that to the extent that Mr Rogers seeks to rely upon it as the source of rights, the status of the document further weakens a claim which is not otherwise established on the evidence or as a matter of law. 57 There are discretionary factors which influence whether an order for an interlocutory injunction might otherwise be made. In this case, because the Applicant is an undischarged bankrupt, the undertaking as to damages is essentially meaningless. Secondly, in order to restrain an exercise of a power of sale on the part of a secured creditor, an injunction order would not ordinarily be made unless the amount secured by the mortgage is paid into Court or, in a case where the amount owing is disputed, the undisputed portion of the debt is paid into Court. The Applicant for interlocutory relief is not in a position to make any payment into Court of the monies secured by the equitable charge. 58 For the above Reasons, I propose to dismiss the application for interlocutory relief. 59 I reserve the question of costs. I will seek to deal with those costs at the directions hearing on 4 May 2006. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 20 April 2006 Counsel for the Applicant: The Applicant was self-represented. Solicitor for the Applicant: The Applicant was self-represented. Counsel for the Respondent: Mr Craig Coulsen Solicitor for the Respondent: Mr Sean Whittle, Whittle Lawyers Solicitor for the Trustee of the Estate of Mr Rogers: Mr G W Rodgers, Tresscox, Solicitors Date of Hearing: 18 April 2006 Date of Judgment: 20 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/434.html