Re Basile, Tony (also known as Basile, Orlando) Ex parte Ancich, Eric John (trading as John Ancich & Co.) [1979] FCA 109

IN THE FEDERAL COURT OF AUSTRALIA)

QUEENSLAND DISTRICT REGISTRY Qld No.G17 of 1978

GENERAL DIVISION

ON APPEAL from the Supreme Court of Queensland exercising Federal Jurisdiction in Bankrutpey

BETHIEEN: TONY BASILE also known as

ORLANDO BASILE

Appellant

" ERIC JOHN _ANCICH trading as

lz Zz iw]

JOHN ANCICH & CO.

Respondent

Coram: Bowen C.J., Franki & Deane JJ.

31 October 1979

Sydney

REASONS FOR JUDGMENT

FRANKI J.

The Chief Judge has dealt with the facts of this case so

that there is no need for me to refer in detail to them.

ee

Although the learned trial judge had the affidavit in support of

he application to the District Court before him in which the

jappellant admitted he owed the sum of $1925.85 and in which he

offered to pay this amount no time was mentioned when it would be paid nor is there any evidence that there was any tender of the

money. In addition no notice of intention to oppose the making

of a sequestration order was filed under the provisions of r.20

of the Bankruptcy rules nor did the appellant seek to contest the

validity of the debt before the learned trial judge. In addition

no attempt was made to resist the making of the sequestration

order on the ground that the appellant could pay his debts.

| The case was presented on appeal as a request to review

the decision of the learned trial judge on the facts before him.

BS

When the affidavit of Mr. Litster was being read counsel for the respondent objected to the admissibility of pars.10,11 and 12 of that affidavit upon the basis that the true nature of the appeal confined the hearing to matters that existed at the date the sequestration order was made. Counsel then started to

argue the nature of the appeal to this Court and counsel for the

appellant was then asked about his attitude. He replied:

"We do not rely upon paragraphs 10, ll, 12 or 13 1n any way to argue that his Honour was wrong, but what we da say 18S that if we can persuade your Honours that his Honour was wrong on the material before him then the material in those Paragraphs goes to show the sort of