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 Ton foto LE I ~ Ease order that ought to be made by this court and goes to show that there is some point to the appeal. With ' respect, I take the point of Deane J. that ut is necessary to show there has been no trial, for example in tne District Court of New South Wales, resulting in a judgment against the appellant. If that were so, our point would be worthless. We seek to show that his Honour was wrong on the material before him and then if we do that we say, look at this further material, may it please your Honours, and then decide whether your Honours ought to dismiss the petition or adjourn ut. Your Honours will note the notice of | appeal appearing at page 46 of the record sought an order from this court that the petition be dismissed 1 or adjourned. Adjournment would have been the appropriate order if, when we came before your Honours, i the application before the District | Court had not been resolved but it is relevant for your Honours to know what happened to that application .when deciding, 1£ your Honours come to that point, to make an order in relation to that appeal; but we do not seek to rely on what is in those paragraphs to critic1ze in any way the trial judge's decision." It was upon this basis that evidence was admitted of the application to set aside the Judgment having been filed, of the order setting aside the judgment having been made, of the payment into Court of $2,500, and of further pleadings having been filed in the District Court. In my opinion the whole appeal was argued by counsel on the basis that the guestion for our determination was whether the learned trial judge was wrong on the facts before him in not TE ey ena tere ney 8 Te eter ren eremtenrrrersurennennrtrataeametitnn neg a granting the adjournment sought (the first ground of appeal argued) or in not dismissing the appeal (the second ground of appeal argued). It was only in the event of the Court being satisfied of one or other of these matters upon the evidence before the learned trial judge that the evidence of events wnich took place after the pronouncement of the sequestration order became relevant and then only relevant for the purpose of qpeiaing what was the appropriate order for the Court to make. Before the learned trial judge it was common ground that the District Court could properly have entered 'judgment for $1925.83. It was held by Gibbs J. in Re Bedford; Ex parte H.C. Sleigh (Queensland) Pty. Ltd. (1967) 9 F.L.R. 495 at pp.498-499 that, 1f a judgment is wrongly entered for an amount in excess of the proper debt, bankruptcy proceedings founded on that judgment are not necessarily invalidated. In my opinion that case is relevant in the appeal before us because 1t 1S common ground that, at the time when the sequestration order was made, the appellant was rightly indebted to the respondent for an amount sufficrent to support bankrutpcy proceedings. In considering the first ground of appeal it is necessary to examine the principles governing such an appeal and I would refer to the judgment of C.A. Sweeney 3., with whose reasons JI agreed, in Field v. Commercial Banking Co. of Sydney Ltd. (1978) 22 A.L.R. 403 at pp.412-414. In my opinion the ' decision of the learned trial judge to refuse an adjournment was an exercise of his discretion and on the facts hefore him I am Satisfied that the exercise of his discretion to refuse an t adjournment waS a proper exercise of his discretion and I see no reason to uphold the appeal on this ground. There was na 'evidence before the trial judge that any application had been made then to set aside the judgment nor indeed 1S there any evidence before us that such application was filed before the sequestration order was pronounced. Whether or not it is appropriate or permissible in certain cases for this court to take into account evidence of matters which have taken place after the trial judge pronounced his order in considering whether an appeal should be allowed, I do not consider this is such a case. | | I do not see how the upholding of this appeal would advance the public interest. I now pass to the second ground of appeal which was argued. Paragraph 3 of the petition accords with the requirements of s.47({1) (a) of the Bankrutpcy Act, 1966, and with r.12 and form 5. Paragraph 2 of the affidavit of Mr. Ancich in support of the petition verifies par.3 of the petition. This is in accordance with the usual form. The deponent has, however, ' en aan mega Neen ee Te neneeeteretere anny wernnere wer = ener Re Ae Mee ee ee added par.3 to his affidavit. This paragraph is not normally added and in it the deponent has purported to verify for a second time and, in what I consider was a superfluous way, that the debt had not been compounded or secured to the deponent's Satisfaction. I consider that the affidavits in support of the petition were adequate and I do not see any need to consider whether s.306 applied. I would dismiss the appeal and order that the appellant pay the respondent's costs of the appeal and of the motion to dismiss the appeal for want of prosecution. r I certify that this andthe ~*7ve preceding pages are a true copy of the Reasons for Judgment herein of his Honour ir. Justice Frasrzkhe Ui, ro) Associate . Datea: 3/ 10/479 rrr erga nny en ee ee ~~ —— - a eee me ee | | ! ! i 1N THE FEDERAL COURT OF AUSTRALIA QUEENSLAND REGISTRY GENERAL DIVISION ) ) ) No. QLD. G 17 of 1978 ) ) ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND EXERCISING FEDERAL JURISDICTION LN BaNKRUPTCY BETWEEN: TONY BASILE, also known as ORLANDO BASILE Appellant AND: ERIC JOHN ANCICH trading as JOHN ANCICH & CO. Respondent CORAM: Bowen C.d., Franki and Deane JJ. 31 October, 1979. DEANE J: REASONS FOR JUDGNENT I agree with the judgment of the Chief Judge. Icerlil, thet tharandhepiereding page' aa {ruc copy of the resvas for Judqnionl herr of His Honour Mr Justice Deane, KO Vea tunstie "" ASSOCIATE Date 3/79