Romano v Peldan [2003] FCA 767

FEDERAL COURT OF AUSTRALIA

Romano v Peldan [2003] FCA 767 BAPTIST JERRY ROMANO v MICHAEL PELDAN AND RAJ KHATRI Q 70 OF 2003

DOWSETT J 16 JULY 2003 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 70 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: BAPTIST JERRY ROMANO

APPELLANT

AND: MICHAEL PELDAN AND RAJ KHATRI

RESPONDENTS

JUDGE: DOWSETT J

DATE OF ORDER: 16 JULY 2003

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondents' 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

QUEENSLAND DISTRICT REGISTRY Q 70 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: BAPTIST JERRY ROMANO

APPELLANT

AND: MICHAEL PELDAN AND RAJ KHATRI

RESPONDENTS

JUDGE: DOWSETT J

DATE: 16 JULY 2003

PLACE: BRISBANE

REASONS FOR JUDGMENT

1 As it seems to me that there is nothing in this matter, and as the judgment creditor has been denied relief in bankruptcy for a considerable period of time already, I propose to give extempore reasons for dismissing the appeal. I should say also, out of deference to the learned Magistrate who decided the matter at first instance, that I see no basis for differing from any aspect of his reasons. I am in substantial agreement with them and wish only to add a few comments of my own so as to identify the matters which have been in issue before me. The facts appear sufficiently from par 2 of the Magistrate's reasons. They are as follows. 2 On 16 January 2002, judgment was pronounced in the Supreme Court of Queensland against the present appellant and in favour of the respondents in the amount of $3,600,000. 3 On 5 February 2002, a bankruptcy notice was issued claiming the sum of $3,618,739.73 being the judgment debt and interest. This bankruptcy notice was served on 22 April 2002. 4 On 9 May 2002, the present appellant filed an application to set aside that bankruptcy notice on the basis that it failed to meet a requirement allegedly made essential by the Bankruptcy Act 1966 (Cth) (the "Act"), namely that there be an accurate statement as to the source of the respondents' entitlement to interest. This application was returnable on 22 May 2002. 5 On 14 May 2002, by letter to the appellant's solicitors, the respondents' solicitors indicated that they would be opposing the application. As counsel was unavailable they sought an adjournment. The matter was adjourned and an order made extending time for compliance with the bankruptcy notice. 6 On 16 May 2002, a second bankruptcy notice was issued claiming only the amount of the judgment, namely, $3,600,000. This notice was served on 23 May 2002. 7 On 11 June 2002, the appellant filed an application in the Magistrates Court, seeking to set aside the second bankruptcy notice. The application was returnable on 26 June 2002. 8 On 18 June 2002, the parties consented to an order consolidating the two applications and extending time for compliance with both notices to the hearing and determination of the application. The applications were adjourned to 17 July 2002. 9 On 28 June 2002, the solicitors for the respondents notified the solicitors for the appellant as follows: