Matheson v Scottish Pacific Business Finance Pty Ltd [2004] FCA 1524

FEDERAL COURT OF AUSTRALIA

Matheson v Scottish Pacific Business Finance Pty Ltd [2004] FCA 1524 FREDERICK MATHESON v SCOTTISH PACIFIC BUSINESS FINANCE PTY LTD Q 170 OF 2004 DOWSETT J 14 OCTOBER 2004 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 170 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: FREDERICK MATHESON

APPELLANT

AND: SCOTTISH PACIFIC BUSINESS FINANCE PTY LTD

RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 14 OCTOBER 2004

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 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 170 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: FREDERICK MATHESON

APPELLANT

AND: SCOTTISH PACIFIC BUSINESS FINANCE PTY LTD

RESPONDENT

JUDGE: DOWSETT J

DATE: 14 OCTOBER 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate refusing to set aside a bankruptcy notice. The bankruptcy notice was based upon a judgment of the District Court at Brisbane dated 14 April 2004. The judgment was by way of summary judgment. His Honour, Judge McGill SC, addressed the various issues which had been raised by the defendant in those proceedings in opposition to the application for summary judgment. 2 The proceedings had been brought in the name of a different company, Allens Services Limited ("Allens"), which hired equipment to the appellant. The proceedings in the District Court were initially commenced in the name of that company. It sought to recover the amount of rental due. The debt was factored to Scottish Pacific Business Finance Pty Limited, the present respondent, and it was joined as plaintiff in place of Allens. Judgment was eventually given in its favour. At some stage, Allens went into liquidation. 3 The appellant applied to the District Court for a "stay" of the judgment. That application was dismissed on 12 August 2004. A bankruptcy notice based on the judgment was issued on 19 May 2004. On 15 June 2004, the appellant filed an application in the Federal Magistrates Court for a stay of the bankruptcy notice. That application was treated as an application for an order setting aside the notice. On 31 August 2004, a Federal Magistrate dismissed that application. This is an appeal from that decision. 4 A perusal of the Magistrate's reasons discloses no apparent error. However the appellant makes several points concerning the proceedings, both in the District Court and before the Magistrate. He submits that the judgment in the District Court was obtained by fraud. If that was so, it was appropriate that he seek to set it aside. However, to the extent that he did so, he was unsuccessful. It seems that his allegation of fraud is based primarily upon a statement made to the District Court Judge that the proceedings had been commenced by the liquidators of Allens. If made, the statement was not true. However it is impossible that such statement could in any way have affected the outcome of the proceedings. No judgment was given in favour of Allens. There is nothing in this point. The appellant also submits that the liquidators ought to have been joined in the action. I see no justification for that view. As I have said, judgment was eventually entered in favour of a quite different plaintiff. 5 The appellant believes that the respondent may have, at some stage, assigned the relevant debt back to Allens. There is simply no evidence of this. The appellant tacitly concedes as much. However he submits that in his application to set aside the District Court judgment, he sought to obtain discovery designed to enable him to determine, one way or the other, whether there had been such an assignment. In my view there is no reason to believe that there was any such assignment, and in those circumstances, his application was probably an abuse of process. 6 The appellant also asserts that at some stage in the cross-examination of an officer of the respondent in the District Court, it was said that the payment of the appellant's debt to the respondent was secured by Allens. Assuming that to be so, it has no relevance for present purposes. In the circumstances, I see no basis for doubting the correctness of the Magistrate's decision. 7 I should add that Mr Matheson is, in any event, an undischarged bankrupt. It has not been suggested that such status in any way affects the outcome of the present proceedings. I order that the appeal be dismissed. I make no order as to costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.