Australia and New Zealand Banking Group Limited v Dunell

[2019] FCCA 88

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED v DUNELL [2019] FCCA 88

Catchwords:
BANKRUPTCY – Application for review of Registrar’s decision – where sequestration order was made against respondent – whether promissory note is an acceptable form of payment.

Legislation:

Bankruptcy Act 1966 (Cth)

Applicant: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

Respondent: WARREN JOHN DUNELL

File Number: BRG 845 of 2018

Judgment of: Judge Vasta

Hearing date: 14 January 2019

Date of Last Submission: 14 January 2019

Delivered at: Brisbane

Delivered on: 14 January 2019

REPRESENTATION

Solicitors for the Applicant: Thomas Greer Lawyers

The Respondent appearing on his own behalf

ORDERS

1. That the Application for Review of Registrar’s Decision filed on 5 November 2018 is dismissed.

2. That the Respondent pay the Applicant’s costs fixed in the sum of $1,125.01.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 845 of 2018

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

Applicant

And

WARREN JOHN DUNELL

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 22 September 2017 the Supreme Court of Queensland ordered that the Respondent, Warren John Dunell, pay the Applicant creditor, Australia and New Zealand Banking Group (“ANZ”), the sum of $299,871.41 plus the amount of $8010.26 in interest.  That total of $307,881.67 was an order of the Court. 

2. The Applicant did not receive payment and so issued a creditor’s petition. 

3. The Respondent has, in his affidavit, filed a promissory note that was given to the bank so as, according to the Respondent, to extinguish that debt.  His argument is that the promissory note is something that the bank has no option but to accept and that the promissory note is a valid form of payment to a bank.  I do not accept that it is a valid form of payment. 

4. As I put to the Respondent during the course of the hearing, one cannot go with a promissory note to the local grocer and get a loaf of bread and a litre of milk. 

5. The Respondent claims that a grocer is not a bank and that a bank is in a different category.  He has not shown to me why it is that a bank is in a different category.  He has made some odd submissions that a promissory note goes through the bank’s American branches and so is dealt with in some other mysterious way. The reasoning employed by the Respondent does elude me. 

6. The fact of the matter is that the Respondent has not made payment to the ANZ.  He has not shown that he has the capacity to make a payment in all of the circumstances.  The decision of the Registrar to make a sequestration order on the estate of the Respondent was not an incorrect decision.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  18 January 2019