Beckwith v Pedler [1999] FCA 1312

FEDERAL COURT OF AUSTRALIA

Beckwith v Pedler [1999] FCA 1312

JOHN RICHARD BECKWITH v DONALD ALEXANDER PEDLER

V 7387 of 1999

RYAN J MELBOURNE 15 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V7387 OF 1999

BETWEEN: JOHN RICHARD BECKWITH

Applicant

AND: DONALD ALEXANDER PEDLER

Respondent

JUDGE: RYAN J

DATE OF ORDER: 15 September

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The time for complying with the bankruptcy notice served on 20 May 1999 be extended until 14 days after the determination by the Court of Appeal of the Supreme Court of Victoria of the appeal to that Court No 7525 of 1998 or further order. 2. That liberty be reserved to either party to apply on not less than 48 hours' notice in writing to the other party. 3. The applicant pay the respondent's costs of the application, including any reserved costs, such costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V7387 OF 1999

BETWEEN: JOHN RICHARD BECKWITH

Applicant

AND: DONALD ALEXANDER PEDLER

Respondent

JUDGE: RYAN J

DATE: 15 SEPTEMBER

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application for review of a decision by a registrar of the Court, refusing to set aside a bankruptcy notice which was served on the applicant on 20 May 1999. The bankruptcy notice was founded on a judgment entered in the County Court of Victoria on 19 October 1998 in the sum of $44,021.43, together with interest of $18,812.09. The plaintiff's costs of the County Court action were subsequently taxed on 8 December 1998 at $23,236.30. 2 The bankruptcy notice claimed a sum of $29,575.27, made up of the amount of judgment and interest to the date of judgment, being $62,833.52, together with costs of $23,236.30 plus interest since the date of judgment of $3505.45, making a total of $89,575.27. Credit was given in the bankruptcy notice for the sum of $60,000, which was paid by the debtor on 18 January 1999 on account of the judgment debt, leaving the net amount claimed in the bankruptcy notice of $29,575.27. 3 The debtor has appealed to the Victorian Court of Appeal against the judgment and order of the County Court. It seems that the appeal will be in a callover to be conducted early in the year 2000 and will be set down for hearing approximately six weeks after the callover. The issues raised by the appeal are in narrow compass and go essentially to the effect and admissibility of evidence as to whether the debtor, who is a solicitor, had failed to credit his client Mr Pedler, at whose instance the bankruptcy notice was issued, with amounts of $30,000 and $11,438.03. 4 The learned County Court Judge upheld Mr Pedler's contentions in that respect. It was asserted in the debtor's Notice of Appeal that the trial Judge's conclusion stemmed from an error as to the admissibility of certain trust account records and a denial of natural justice constituted by a refusal to adjourn the trial to enable an accountant to be called to give evidence about the preparation and effect of those records. 5 It is unnecessary, and I consider undesirable, for this Court to express a view as to whether the appeal should succeed. The application to set aside the bankruptcy notice is not predicated on an invitation to this Court to go behind the judgment debt. However, there is evidence before the Court, in the form of an opinion from Senior Counsel, that the debtor has reasonable prospects of successfully prosecuting his appeal to the Court of Appeal.