Akhras, E.H. v Commonwealth Bank of Australia
[1995] FCA 124
•14 MARCH 1995
CATCHWORDS
BANKRUPTCY - Generally - application of Debtor to set aside Bankruptcy Notice - no question of principle.
RE: EDOUARD H AKHRAS, EX PARTE COMMONWEALTH BANK OF AUSTRALIA
No NN 3396 of 1994
Lindgren J
Sydney
14 March 1995
IN THE FEDERAL COURT OF AUSTRALIA )
BANKRUPTCY DISTRICT OF THE STATE OF ) No NN 3396 of 1994
NEW SOUTH WALES )
RE:
EDOUARD H AKHRAS
Debtor/Applicant
EX PARTE:
COMMONWEALTH BANK OF AUSTRALIA
Creditor/Respondent
CORAM:Lindgren J
PLACE:Sydney
DATE:14 March 1995
MINUTE OF ORDERS
THE COURT:
ORDERS that the Debtor's application be dismissed.
ORDERS that the Debtor pay the Creditor's costs.
NOTE: Settlement and entry of orders is dealt with in rule 124 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
BANKRUPTCY DISTRICT OF THE STATE OF ) No NN 3396 of 1994
NEW SOUTH WALES )
RE:
EDOUARD H AKHRAS
Debtor/Applicant
EX PARTE:
COMMONWEALTH BANK OF AUSTRALIA
Creditor/Respondent
CORAM:Lindgren J
PLACE:Sydney
DATE:14 March 1995
REASONS FOR JUDGMENT
There is before the Court an application by Edouard H. Akhras ("the Debtor") to set aside a bankruptcy notice dated 10 November 1994 issued on the application of the Commonwealth Bank of Australia ("the Bank"). The Debtor appears in person. The Bank is represented by Mr Titmarsh, solicitor.
The Debtor's application was filed on the 15 February 1995 and is returnable today. As well as seeking an order that the bankruptcy notice be set aside, the application seeks an order that time for compliance with the requirements of the bankruptcy notice be extended until the determination of the application to set aside.
The application is supported by an affidavit of the Debtor, sworn 16 January 1995. A copy of that affidavit is annexed to these Reasons for Judgment.
The bankruptcy notice is founded upon a judgment obtained by the Bank in the Local Court at Parramatta on 1 March 1994. The amount of the judgment is $11,111.73. The giving of judgment by the magistrate on that occasion followed a contested hearing. It is common ground that the Debtor appeared for himself in the Local Court and that Mr Titmarsh appeared for the Bank. A copy of the Local Court judgment certified by the Registrar of the Local Court at Parramatta accompanied the Bank's application to this Court for the issue of the bankruptcy notice. At certain stages of the hearing before me the Debtor seemed to be asserting that no judgment had been given against him in the Local Court. I interpret his statements to mean that no judgment had properly been given against him.
In his affidavit in support of his present application, the Debtor complains that the hearing before the magistrate did not take place in a proper manner or according to law. It is very difficult to see precisely the nature of the complaint made by the Debtor as to the procedure followed in the Local Court. As can be seen, the Debtor's affidavit in support of the present application is a miscellany of vague allegations most of which have no relevance to that hearing. I have sought in the course of the hearing to clarify precisely what is the nature of the Debtor's complaint. The best that I can make of it is that the Debtor feels that the hearing before the magistrate was hurried and that before he knew what was happening a decision was given against him. The complaint seems to be that the magistrate did not indulge the Debtor with sufficient time to explore the events referred to in his affidavit filed in this Court. But that affidavit does not articulate a defence to the Bank's claim.
The salient feature for today's purposes is that the Debtor does not dispute that the debt was incurred. He has said several times during the hearing before me that the debt itself is not in dispute. He has also said that he is not looking for "charity". As best as I can understand it, he says that he has complaints against the State Government and perhaps the Federal Government (the nature of which has not been articulated), and as well a complaint that he has not been allowed by the Bank to pay by instalments. Underlying the case is the fact that the indebtedness which gave rise to the judgment arose out of the purchases by the Debtor on a "bankcard" or "mastercard" facility provided by the Bank, of medicines and pharmaceutical requirements in connection with his health. The relevance of this fact to the issue whether the bankruptcy notice should be set aside is not evident to me.
The question of the circumstances in which the Court will go behind a judgment founding a bankruptcy notice has been considered in the cases. Those circumstances are somewhat limited: see Darvall and Fernon (eds), McDonald Henry & Meek's Australian Bankruptcy Law & Practice, vol 1, para [205] and cases there cited. There is before me no admissible evidence of fraud or collusion or of a miscarriage of justice in connection with the Bank's obtaining of the judgment in the Local Court at Parramatta, although the Debtor has freely used the word "fraud" in his affidavit and also in the course of the hearing this afternoon. Again, it is important to note that the Debtor does not dispute his indebtedness to the Bank although he does seem to wish to challenge, on undefined grounds, the fact of the Bank's judgment for the debt.
The case is clearly one where, on the evidence before me, it would be erroneous for me to set aside the bankruptcy notice because no ground for doing so has been made out.
In view of his admission that the debt is owing, the Debtor's remedy is to take up the question of payment with the Bank or to apply to the Local Court for an order permitting him to pay by instalments. I referred to these possibilities in the course of the hearing. These possibilities are matters with which I need not concern myself further.
The Debtor has not applied to set aside the judgment debt, although the judgment has been on foot in the Local Court at Parramatta since 1 March 1994.
In the circumstances the proper decision on the evidence is to order that the Debtor's application to set aside be dismissed and that the Debtor pay the costs of the Bank.
I dismiss the Debtor's application. I order the Debtor to pay the respondent Creditor's costs.
I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.
Associate:
Dated:16 March 1995
Heard: 14 March 1995
Place: Sydney
Decision: 14 March 1995
Appearances: The applicant appeared in person.
Mr S Titmarsh of Baker Ryrie Richards Titmarsh, solicitors, appeared for the respondent.
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