Rogers v Asset Loan Co Pty Ltd [2008] FCA 1305

Rogers v Asset Loan Co Pty Ltd [2008] FCA 1305

The applicant's substantive application lacks reasonable prospect of success as the damages claim, even if based on alleged breaches of the ASIC Act, is consequential upon property or financial interests vested in the trustee in bankruptcy; the claim for personal injury damages is not sufficiently severable. Thus, summary dismissal is appropriate. Orders restricting litigation under O 21 r 1 and r 2 are not warranted without a discrete application as prescribed by the rules.

Parties
Applicant: Gregory Eric Rogers; First Respondent: Asset Loan Co Pty Ltd ACN 107 746 798; Second Respondent: Asset Loan Company Pty Ltd ACN 101 054 997; Third Respondent: Paul Alexander Sydney Hare; Fourth Respondent: Russell Frank Percival; Fifth Respondent: Judith Lorraine Hare; Sixth Respondent: Riverstone Nominees Pty Ltd ACN 063 086 546 as trustee for the Percival Family Trust No 2; Seventh Respondent: Sean Whittle; Eighth Respondent: Robert Edward Borbidge; Ninth Respondent: Jenny Purcell
Jurisdiction
Australia
Judgment Date
21 August 2008
Procedural Posture
Motion for Summary Dismissal / Final Judgment Summary Dismissal
Outcome
Application dismissed
Legal Topics
Summary Judgment, Vexatious Proceedings, Leave to Institute Proceedings, Affidavit Removal, Damages for Personal Injury
Practice and Procedure Bankruptcy Law Commercial Law Summary Judgment Vexatious Proceedings Leave to Institute Proceedings Affidavit Removal Damages for Personal Injury

Case Brief

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Parties

Gregory Eric Rogers

Applicant

Asset Loan Co Pty Ltd ACN 107 746 798

First Respondent

Asset Loan Company Pty Ltd ACN 101 054 997

Second Respondent

Paul Alexander Sydney Hare

Third Respondent

Russell Frank Percival

Fourth Respondent

Judith Lorraine Hare

Fifth Respondent

Riverstone Nominees Pty Ltd ACN 063 086 546 as trustee for the Percival Family Trust No 2

Sixth Respondent

Sean Whittle

Seventh Respondent

Robert Edward Borbidge

Eighth Respondent

Jenny Purcell

Ninth Respondent

Procedural Posture

Motion for Summary Dismissal / Final Judgment Summary Dismissal

Legal Issues

  1. 1 Whether the substantive application discloses any reasonable cause of action and has a reasonable prospect of success
  2. 2 Whether damages claimed by the applicant are severable personal injury claims or consequential to property interests affected by bankruptcy
  3. 3 Whether the applicant is a vexatious litigant warranting orders under Federal Court Rules O 21 r 1 or r 2

Ratio Decidendi

The applicant's substantive application lacks reasonable prospect of success as the damages claim, even if based on alleged breaches of the ASIC Act, is consequential upon property or financial interests vested in the trustee in bankruptcy; the claim for personal injury damages is not sufficiently severable. Thus, summary dismissal is appropriate. Orders restricting litigation under O 21 r 1 and r 2 are not warranted without a discrete application as prescribed by the rules.

Court Disposition

Application dismissed

Orders

  • Leave granted to Respondents to amend their notice of motion and read Mr Whittle's affidavit filed 4 December 2007 in support
  • Application filed 1 November 2007 dismissed