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Insolvency and related law and policy, and more

Michael Murray is an Australian author and commentator on corporate and personal insolvency law and related issues, in Australia and internationally. He has a strong law and policy background, is independent of any connections, and his views are his own. He gives no legal advice. 

All over a rooster

A bankrupt who claimed that noise attributed to her unauthorised rooster was in fact made by her peacock, which was disturbed by someone pulling feathers from a kookaburra, has been declared a vexatious litigant by the Federal Court.

In earlier proceedings, a NSW court had verified the identity of a rooster on her property as being one and the same rooster that she was ordered to remove in those proceedings: see A bankrupt and ‘one rooster, one peacock, three ducks, and 22 chickens …’ .

As Justice Wheelahan of the Federal Court explained, she

‘continues to dispute the allegations in relation to her rooster, and disputes that her rooster, which she claimed was kept inside her house in a box, could be heard by any complainant. [She] stated in her affidavit that she kept a peacock which made its resting place in a tree outside her bedroom window. She claimed that the noise that was heard and attributed to her rooster was in fact caused purposely by an unidentified person pulling feathers from a kookaburra, which disturbed her peacock causing it to make some noise, and that the noise was not caused by her rooster.’

The Court acted under s 37AO of the Federal Court of Australia Act on its own initiative, with submissions in support made by the bankruptcy trustee.

Justice Wheelahan said that she had ‘developed a pattern of behaviour by which she does not accept the validity of orders that have been made against her, whether they be those in the Land and Environment Court, the Federal Magistrates Court, the Supreme Court of New South Wales, or this Court’. She disputed the sequestration order made against her and then refused to sign a statement of affairs.

Her challenges in the Federal Court had been ‘accompanied by highly creative but extravagant arguments that had no reasonable prospects of success’.

The Judge gave various reasons for the order declaring her vexatious, an important one being ‘protect [her] from the consequences of her own actions’.

Apart from her own costs in bringing her litigation challenges, the trustee’s accumulated costs would be paid from the funds held in the estate, which would reduce any sum to which she would be entitled should a surplus of the estate be distributed. Distribution had in fact been hindered because of her refusal to sign a statement of affairs.

The Judge suggested that she might

‘turn her attention to whether her interests are best served by signing the statement of affairs, thereby permitting the administration of her bankrupt estate to run its course, which may result in payment to [her] of the surplus ..’.

Fokas v Mansfield as Trustee of the Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30.

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