Maley, Leo v New South Wales Department of Housing [1998] FCA 374

FEDERAL COURT OF AUSTRALIA BANKRUPTCY - Validity of bankruptcy notice - notice issued in respect of costs order made following judgment in Local Court - whether respondent a creditor with entitlement to petition for bankruptcy - whether respondent a person or body entitled by or under an Act to receive payment of costs awarded against an informant - whether a Government Department can be such a person or body. Constitution Act 1902 (NSW) Justices Act 1902 (NSW) ss 89G, 125 Local Courts (Civil Claims) Act s 31 Public Sector Management Act 1988 (NSW) Residential Tenancies Act 1987 (NSW) ss 117A, 117B, 118, 119, 129 LEO MALEY v NEW SOUTH WALES DEPARTMENT OF HOUSING NG 8438 of 1997 DAVIES J 17 APRIL 1998 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 8438 of 1997

BETWEEN: LEO MALEY

Applicant

AND: new south wales DEPARTMENT OF HOUSING

Respondent

JUDGE: DavIES J

DATE OF ORDER: 17 april 1998

WHERE MADE: SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT: 1. The decision of the Deputy Registrar be set aside and in lieu thereof it be ordered that the bankruptcy notice be set aside. 2. The parties abide their own costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 8438 of 1997

BETWEEN: LEO MALEY

Applicant

AND: new south wales DEPARTMENT OF HOUSING

Respondent

JUDGE: DAVIES J

DATE: 17 april 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT This is a review of a decision of a Deputy Registrar refusing to set aside a bankruptcy notice served on the debtor, Mr Leo Maley. A certificate dated 9 December 1993, purporting to be a certificate of a judgment of the Local Court Newcastle, read as follows: "JUDGMENT CREDITOR: DEPARTMENT OF HOUSING JUDGMENT DEBTOR: LEO MALEY It is this day adjudged that: 1. In respect of a conviction by Magistrate Colin Elliot Esq at the Local Court at Newcastle on 24 July, 1991 that: (a) The Judgment Debtor pay the Judgment Creditor: (i) professional costs in the sum of $7,861.20; (ii) witness expenses of $1,318.00; (iii) interpreter fees of $1,398.00; (iv) disbursements of $250.00; Totalling $10,827.20" Subsequently, a bankruptcy notice was served upon Mr Maley containing the following information, inter alia: "1 New South Wales Department of Housing (the `creditor') of: 21 - 23 Moore Street, Liverpool NSW 2170 claims you owe the creditor a debt of $18,680.75, as shown in the Schedule. 2 The creditor claims that the debt is due and payable by you. A copy of the judgment or order relied upon by the creditor is attached. At the time of applying for this Notice, execution of the judgment or order has not been stayed. 3 You are required, within 21 days after service on you of this Bankruptcy Notice: (a) to pay to the creditor the amount of the debt; or (b) to make an arrangement to the creditor's satisfaction for settlement of the debt. 4 Payment of the debt can be made to: New South Wales Department of Housing of: 21 - 23 Moore Street Liverpool NSW 2170 (Ref: C Valacos)" Mr Maley applied to have the bankruptcy notice set aside on the ground that he disputed the claim and, furthermore, that he had written offering to settle the claim and that the financial adviser at the Newcastle office of the Department of Housing of New South Wales had both consented to the offer and had agreed to send it on to their Liverpool main office for completion and attention. He further submitted that the Court should go behind the judgment as it was based on false and fake evidence. The Deputy Registrar rejected Mr Maley's application. In the present proceedings, Mr Maley reiterated his claims. Like the Deputy Registrar, I am satisfied that no settlement was reached as to the amount due. In cross-examination, Mr Maley conceded that the officers to whom he spoke at the Newcastle office of the Department of Housing said that it was not for them to sign the proposal which he tendered but a matter for the head office of the Department of Housing. As no officer of the Department of Housing accepted Mr Maley's offer, the amount of any judgment debt remains due in accordance with the terms of the judgment. The next matter that was put was that the judgment, which represented costs, was a judgment based on false accusations and false evidence. Mr Maley had been the landlord of certain premises coming within the purview of the Residential Tenancies Act 1987 (NSW). A Mr Anthony Hutchins, an investigating officer with the Tenancy Commissioner's office, laid informations against Mr Maley alleging breaches of the Residential Tenancies Act by virtue of interference with the reasonable peace and privacy of the tenants, of taking of unlawful possession of premises, of failing to give a copy of a residential tenancy agreement to a tenant and so on. Eight offences were alleged. The charges were heard in the Local Court of Newcastle on 24 July 1991 and, in each case, Mr Maley was convicted and it was ordered that Mr Maley pay to the Clerk of the Local Court a specified sum of professional costs and witnesses' and interpreters' expenses. It appears that Mr Maley did not attend during the hearing of those charges. According to his evidence, he sought that the Magistrate disqualify himself. When this application was refused, he left the Court. Subsequently, Mr Maley appealed to the District Court but, again, he did not appear at the hearing and the appeal was dismissed and he was ordered to pay costs. He later lodged an application with the Court of Appeal of New South Wales for leave to appeal out of time but that application was rejected. The evidence given by Mr Maley does not show a prima facie case of fraud. His evidence amounts to no more than an unparticularised and unsubstantiated accusation that the evidence given was false. The charges against Mr Maley were heard in open court. Witnesses gave oral evidence. The Magistrate determined the matter on the evidence before him. In these circumstances, there is no basis for going behind the judgment of the learned Magistrate. I therefore agree with the Deputy Registrar with respect to all the grounds which were raised by Mr Maley. However, as during the hearing of this review, I did not understand how the convictions on informations brought by Mr Anthony Hutchins and the orders made requiring sums for costs, witnesses' and interpreters' expenses to be paid to the Clerk of Courts at the Local Court Newcastle became converted into a civil judgment in favour of the Department of Housing of New South Wales, I asked counsel who appeared for the Department of Housing to obtain further instructions about the matter and to let me have written submissions. These submissions have since been received.