Dispute Resolution Associates Pty Ltd v Selth [2020] FCA 753

Dispute Resolution Associates Pty Ltd v Selth [2020] FCA 753

The proceedings were not Pt IVA representative proceedings and were accepted as proceedings commenced under r 9.23 of the Federal Court Rules 2011 (Cth), but the respondents failed to provide adequate evidence that Mr Tolhurst was a trustee within r 9.23 or otherwise an appropriate representative to replace Mr Selth. There was no direct evidence from Mr Tolhurst and no evidence of a trust relationship equivalent to that previously held by Mr Selth. The interlocutory application was therefore dismissed.

Jurisdiction
Australia
Judgment Date
02 June 2020
Procedural Posture
Interlocutory Application in Federal Court Civil Proceedings / Respondents' Interlocutory Application Filed on 23 May 2020 Seeking Removal of Mr Philip Selth and Substitution of Mr Gregory John Tolhurst as Representative for the First Respondent
Outcome
The respondents' interlocutory application filed on 23 May 2020 was dismissed; parties were ordered to bear their own costs; liberty to apply was granted.
Legal Topics
['substitution of Party After Death' 'representative Party for Beneficiaries' 'standing to Represent Unincorporated Association' 'part IVA Representative Proceedings' 'adequacy of Evidence for Substitution']
['practice and Procedure' 'civil Procedure' 'representative Proceedings' 'trusts'] ['substitution of Party After Death' 'representative Party for Beneficiaries' 'standing to Represent Unincorporated Association' 'part IVA Representative Proceedings' 'adequacy of Evidence for Substitution']

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Procedural Posture

Interlocutory Application in Federal Court Civil Proceedings / Respondents' Interlocutory Application Filed on 23 May 2020 Seeking Removal of Mr Philip Selth and Substitution of Mr Gregory John Tolhurst as Representative for the First Respondent

Legal Issues

  1. 1 ['Whether the proceedings were commenced under Pt IVA of the Federal Court of Australia Act 1976 (Cth) or under r 9.23 of the Federal Court Rules 2011 (Cth).' 'Whether Mr Gregory John Tolhurst should be substituted for the deceased Mr Philip Selth as representative for the First Respondent.' 'Whether the respondents provided adequate evidence that Mr Tolhurst was a trustee or otherwise an appropriate representative for the First Respondent.' 'Whether r 9.11 of the Federal Court Rules 2011 (Cth) should apply to the proposed substitution.']

Ratio Decidendi

The proceedings were not Pt IVA representative proceedings and were accepted as proceedings commenced under r 9.23 of the Federal Court Rules 2011 (Cth), but the respondents failed to provide adequate evidence that Mr Tolhurst was a trustee within r 9.23 or otherwise an appropriate representative to replace Mr Selth. There was no direct evidence from Mr Tolhurst and no evidence of a trust relationship equivalent to that previously held by Mr Selth. The interlocutory application was therefore dismissed.

Court Disposition

The respondents' interlocutory application filed on 23 May 2020 was dismissed; parties were ordered to bear their own costs; liberty to apply was granted.

Orders

  • ['The interlocutory application filed on 23 May 2020 be dismissed.' 'The parties bear their own costs of and incidental to the interlocutory application filed on 23 May 2020.' 'There be liberty to apply.']