Foyster v Australia & New Zealand Banking Group Ltd [2000] FCA 1254

FEDERAL COURT OF AUSTRALIA

Foyster v Australian & New Zealand Banking Group Ltd [2000] FCA 1254 LLOYD FOYSTER v AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED N 374 OF 2000 BEAUMONT, MARSHALL AND LEHANE JJ 5 SEPTEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 374 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: LLOYD FOYSTER

APPELLANT

AND: AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED

RESPONDENT

JUDGES: BEAUMONT, MARSHALL AND LEHANE JJ

DATE OF ORDER: 5 SEPTEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant 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.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 374 OF 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: LLOYD FOYSTER

APPELLANT

AND: AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED

RESPONDENT

JUDGES: BEAUMONT, MARSHALL AND LEHANE JJ

DATE: 5 SEPTEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a sequestration order made on 31 March 2000 by a Judge of the Court against the estate of the appellant, Mr Foyster. The petition on which the order was made was based on a debt of $47,899.52, being an unsatisfied judgment of the Supreme Court of New South Wales for unpaid costs.

proceedings before the primary judge 2 Mr Foyster opposed the petition on two grounds, stated as follows: "1. The respondent is solvent and able to pay his debts as and when they fall due; 2. The respondent offers to pay the sum referred to in the petition into Court." 3 As to the latter ground, the primary Judge recorded that, at the commencement of his submissions in reply, counsel for Mr Foyster offered (on behalf of Mr Foyster) to pay the sum of $47,899.52 to the respondent (the Bank) forthwith and to consent to an order that Mr Foyster pay the Bank's taxed costs of the petition. The offer was not accepted. Relying on McIntosh v Shashoua (1931) 46 CLR 494 at 505, 508, 521, the primary Judge held that the Bank was entitled to refuse a tender of payment of the debt on which the petition was based and to proceed with the petition. His Honour was plainly right to do so, and the contrary was not argued on the appeal. 4 The first ground relied on s 52(2)(b) of the Bankruptcy Act 1966 (Cth), which provides: "(2) If the Court … is satisfied by the debtor: (a) that he or she is able to pay his or her debts; … it may dismiss the petition."