Shields v Australia & New Zealand Banking Group Ltd [1997] FCA 1607

JUDGMENT No. £6.9.2N L287

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 615 of 1996 GENERAL DIVISION )

On appeal from a Judge of the Federal Court of Australia

BETWEEN: ISAAC JOHN MACKAY SHIELDS First Appellant

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f FEDERAL COURT \ f OF AUSTRALIA

21 SEP 2001

JENNIFER MARGARET SHIELDS Second Appellant

AND: AUSTRALIA AND NEW ZEALAND LIBRARY BANKING GROUP LIMITED . : Respondent CORAM: Einfeld, Lindgren, Lehane JJ PLACE: Sydney : DATE: 17 February 1997 REASONS FOR JUDGMENT

(ex tempore)

EINFELD J:

This is an appeal against a judgment of Whitlam J, given on 16 July 1996, in which his Honour made a sequestration order against the estate of each of Isaac John Mackay Shields and Jennifer Margaret Shields (the Shields) on the petition of the Australia and New Zealand Banking Group Limited (the bank). His Honour's short judgment stated that he was satisfied with the proof of the matters required by section 52 (1) of the

Bankruptcy Act and his Honour noted that the date of the act of

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bankruptcy was 18 November 1994. The petition was founded upon

that act of bankruptcy.

The matter commenced in September and October 1992 with proceedings between the bank and the Shields on a mortgage dated 6 February 1990 over the home in which the Shields were then living (the property). Those proceedings were commenced by the Shields and the bank filed a cross-claim against them seeking judgments in debt and for the possession of the property. On 8 February 1993, Morling J, then a judge of this Court, entered consent orders against the Shields for judgment in an amount of just under $140,000, and for possession of the property. His

Honour dismissed the Shields' amended application seeking

effectively the opposite orders.

On 20 July 1993, Wilcox J dismissed a notice of motion filed by the Shields seeking to set aside the judgment and orders made by 'Morling J on 8 February. Right to this day the Shields appear to be alleging that the orders which Morling J made were not in fact made by consent or were made in error. On 20 August 1993, a bankruptcy notice was issued against the Shields by a deputy registrar of the Court and on 8 October 1993 the bankruptcy notice was served on Mr Shields. An order was made by Hill J on