Makucha v Canon Australia Pty Ltd [2004] FCA 1221

FEDERAL COURT OF AUSTRALIA

Makucha v Canon Australia Pty Ltd [2004] FCA 1221 PAUL MAKUCHA v CANON AUSTRALIA PTY LIMITED N 1327 OF 2004 STONE J 16 SEPTEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1327 OF 2004

BETWEEN: PAUL MAKUCHA

APPLICANT

AND: CANON AUSTRALIA PTY LIMITED

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 16 SEPTEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The notice of motion be dismissed with 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 N 1327 OF 2004

BETWEEN: PAUL MAKUCHA

APPLICANT

AND: CANON AUSTRALIA PTY LIMITED

RESPONDENT

JUDGE: STONE J

DATE: 16 SEPTEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 3 August 2004, Registrar Hedge, sitting as a registrar of the Federal Magistrates Court, dismissed the applicant's motion to set aside a bankruptcy notice issued by the respondent. On 6 September 2004 Federal Magistrate Raphael dismissed an application to review Registrar Hedge's decision. On the same day the respondent filed a creditor's petition in the Federal Magistrates Court and was granted a return date of 22 September 2004. The creditor's petition was served on Mr Makucha on 13 September 2004. 2 On 10 September 2004 Mr Makucha filed in this Court a notice of appeal from the decision of the Federal Magistrate. He now seeks, by way of interlocutory relief pending the outcome of the appeal to this Court, an order to stay or set aside the bankruptcy notice and the creditors's petition. 3 The background to this matter was summarised by the respondent in a chronology provided at the hearing of Mr Makucha's stay application. Although Mr Makucha disputed the legal correctness of decisions made at various stages I do not understand him to take issue with the broad outline of that chronology. The following summary relies on that chronology. 4 The debt underlying the bankruptcy notice arose from a costs order made by the New South Wales District Court in June 2003. Those costs were assessed and a certificate of determination of costs was issued in favour of the respondent. On 6 April 2004 judgment for those costs was awarded in the New South Wales Local Court pursuant to s 208J(3) of the Legal Profession Act 1987 (NSW). 5 The hearing of the application for interlocutory relief was complicated by Mr Makucha representing himself without legal assistance. In support of his application Mr Makucha submitted that he disputes: * the debt claimed by the respondent; * the correctness of the creditor's petition and bankruptcy notice on which it is based; and * that he has committed an act of bankruptcy 6 Mr Makucha also claims that if the interlocutory relief he seeks is not granted he will not be able to prosecute his appeal in this Court or certain other applications that he has made in the Supreme Court of New South Wales and in the Local Court of New South Wales. As I understand it his concern is based on the limitations that arise once a sequestration order has been made and, pursuant to s 58 of the Bankruptcy Act 1966 (Cth), the property of the bankrupt vests in the trustee. The argument assumes that without the relief sought the creditor's petition would, inevitably, be granted and a sequestration order would issue.