IN THE FEDERAL COURT OF AUSTRALIA ) ) : QUEENSLAND DISTRICT REGISTRY ) No. G 61 of 1986 ) GENBRAL DIVISTON ) ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN : BARRYMORE FRANCIS CLARKE and MARJORIE CLARKE Appellants and PETER SHEEHY Respondent MINUTES OF ORDER JUDGES MAKING ORDER: NORTHROP, NEAVES AND BEAUMONT, JJ. DATE ORDER MADE: 29 JULY 1986 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. Appeal allowed in part. 2. Vary orders made by Spender J. on 22 May 1986 by setting aside the order granting an extension of time for compliance with the bankruptcy notice. 3. Appeal otherwise dismissed. 4. Appellants to pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. * Not considered appropriate for further distributionf) RECEIVE ey ete eine ainda ns att ae Aa os . IN THE FEDERAL COURT OF AUSTRALIA ) ) - QUEENSLAND DISTRICT REGISTRY ) No. G 61 of 1986 ) GENERAL DIVISION ) ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN : BARRYMORE FRANCIS CLARKE and MARJORIE CLARKE Appellants and PETER SHEEHY Respondent COURT: NORTHROP, NEAVES AND BEAUMONT JJ. DATE: 29 JULY 1986 PLACE: BRISBANE REASONS FOR JUDGMENT THE COURT: - On 5 February 1985, the respondent, a solicitor of the Supreme Court of Queensland, obtained an order against the appellants in the Supreme Court of Queensland for costs which were subsequently taxed at $1,651.50. On 7 June 1985, the Deputy Registrar issued a bankruptcy notice based on that judgment directed to the appellants. On 17 July 1985, before the expiration of the time fixed for compliance with the requirements of the bankruptcy notice, the appellants filed with the Registrar an affidavit of the kind referred to in s.41(7) of the Bankruptcy Act 1966 ("the Act"), with the aerate - wore e D atetentealiarathareaie tilieasiemmentarcniameantan attest . . ~ * _ , . a i tol a ets omic me eee ee tannery tere roe ee object of satisfying the Court of the existence of a counter-claim, set-off or cross demand as described in s.40(1)(g) of the Act. The claim of the appellants against the respondent was said to be for damages for professional negligence or breach of contract alleged to arise out of the negligent manner in which the respondent performed his duties as solicitor for the appellants in action No. 2205 of 1982 in the Supreme Court of Queensland between the appellants, as first plaintiffs, and B. & M. Clarke Enterprises Pty. Ltd., second plaintiff, and Japan Machines (Australia) Pty. Ltd., as first defendant, and Citicorp Australia Limited, as second defendant. Pursuant to r.10 of the Bankruptcy Rules, there was referred to the Court for determination the question whether it was satisfied that the appellants had a claim which equalled or exceeded the amount of the order for costs. On 22 May 1986, for the reasons he then gave, Spender J. held that he was not so satisfied and made certain other orders. The appellants now appeal against that decision. The issues before Spender J. were, firstly, whether the appellants could establish any breach of duty or breach of contract on the part of the respondent and, secondly, if any such breach were established, whether the damages flowing from any such breach equalled or exceeded the sum of $1,651.50. qo +) vetle ' After reviewing the evidence, Spender J. concluded that no breach of duty or breach of contract on the part of the respondent had been made out. His Honour said:- "IT am left with the clear impression that Mr. Sheehy addressed a most difficult piece of litigation properly; that the assistance of counsel was sought and relied on more extensively than usual; and that the preparation for and conduct of the trial, including the central question of damage, at all relevant times occurred with the direct involvement of competent and senior counsel." The appellants, who appeared before us in person, attempted to argue that Spender J. should have found that the respondent had been guilty of professional negligence ina number of respects. We do not propose to canvass these submissions in any detail. The issues before Spender J. were essentially factual in their character. In our opinion, the appellants have failed to demonstrate that any error was made by Spender J. in concluding that no breach of duty or contract appeared on the material before him. For these reasons, we propose to dismiss the appeal to this extent. However, we note that the formal order dated 22 May 1986 makes no reference to His Honour's failure to be satisfied of the matters specified in s.41(7). That order should be amended accordingly. . sey TN eee eg epee tet FNS na nS Salina -4- Further, at the time of publication of his reasons, Spender J. purported to extend time for compliance with the bankruptcy notice for a period of fourteen days from 22 May 1986. Since the appellants were not seeking to set aside the bankruptcy notice or the order of the Supreme Court of Queensland in respect of which the bankruptcy notice was issued, the Court had no power to grant any such extension (see James v. Abrahams (1981) 34 ALR 657 at page 665). The appeal should be allowed to this extent. We also note that the formal order for costs dated 22 May 1986 should be amended by deleting the words "and of". The orders of the Court are:- 1. Appeal allowed in part. 2. Vary orders made by Spender J. on 22 May 1986 by setting aside the order granting an extension of time for compliance with the bankrupty notice. 3. Appeal otherwise dismissed. 4, Appellants to pay the respondent's costs of the appeal. I certify that this and the three (3) preceding pages are a true copy of the Reasons for Judgment herein of the Hon. Mr. Justice Northrop, the Hon. Mr. Justice Neaves and the Hon. Mr. Justice Beaumont. Cf ele Associate ga\q|36 i Ye ETT TT I tt eeepc eee ee ee 1 er) mony . ry ae TA,