Malan, J. v. Silvas, T. [1994] FCA 829

JUDGMENT No. 222.) tL IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION ) BANKRUPTCY DISTRICT OF THE ) No. NB237 of 1993 STATE OF NEW SOUTH WALES ) RE: JOHN MALAN Debtor EX PARTE: DORE SILVAS Creditor PLACE: SYDNEY 11 NOV 1994 : FEDERAL COURT 5 DATED 25 OCTOBER 1994 SRAL COUR OF ie PRINCIPAL , f REGISTRY , , OR oA

Mr Malan applies to the Court for an order to annul his bankruptcy. He was made bankrupt by Beaumont J on a

petition filed by Mr Silvas on 14 January 1993.

The circumstances in which Mr Malan now finds himself invoke sympathy. The events which gave rise to his bankruptcy originated in or around 1985 and concern dealings between Mr Malan and Mr Silvas who Mr Malan, at _ least, believed at all times acted for him as his solicitor. The dealings in question concerned, among other things, an unsuccessful purchase of a house, an actual purchase of a house and workers' compensation litigation which Mr Silvas

apparently conducted on behalf of Mr Malan's wife.

Mr Malan alleges that Mr Silvas did not properly account to him in respect of moneys concerning each of these

transactions. Those allegations led to a meeting in Granville

in 1989 where Mr Malan, in the presence of others, said in the Romanian language words which were translated to the following

effect:

"What did you do with the thousand dollars which I have given to you in connection with the house which the change his mind to sell to me? [sic] Did you put this money in your pocket because you didn't give me any account of this money at all and never?".

This conversation gave rise to proceedings which Mr Silvas then commenced against Mr Malan claiming damages for

defamation.

Initially, Mr Silvas requested a jury trial and Mr Malan was advised that there was no need for him separately to request a jury trial as his consent was necessary if Mr Silvas wished to withdraw Mr Silvas' request. Ultimately, however, the case did not proceed before a jury because the