Burckhardt, Barry Raymond v I and L Securities Pty ltd

[1998] FCA 891

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7172 of 1998

BETWEEN:	BARRY RAYMOND BURCKHARDT APPLICANT
AND:	I & L SECURITIES PTY LTD RESPONDENT

JUDGE:	HEEREY J
DATE:	27 JULY 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The applicant, Mr Barry Raymond Burckhardt, seeks review of an order made by Registrar Seccombe on 18 May 1998 refusing to further extend the time for a bankruptcy notice which had been issued on 22 August 1997.  That notice had already been extended twice.  The debt arises out of a mortgagee's sale of a property in Shute Harbour, Queensland.  The property was sold by auction on 6 May 1997 for $300,000.  On 4 August 1997 Williams J of the Supreme Court of Queensland gave judgment on an application for summary judgment by the mortgagee in the sum of $167,750.80.

Mr Burckhardt was represented by solicitors and counsel on that occasion.  He had earlier filed a defence in which it appears that his primary defence was that the property was sold at a gross undervalue and without the mortgagee taking reasonable care to ensure that the property was sold at market value.  Mr Burckhardt has subsequently produced a valuation which would put the figure of $400,000 on the house.  Mr Burckhardt appealed from the judgment of Williams J to the Court of Appeal of Queensland which, on 13 July 1998, dismissed the appeal.  Mr Burckhardt says that he has since discovered material which shows that the marketing of the property was "very shabby", and that the actual advertising was less than proposed in a marketing statement which was produced before Williams J.  He also  complains of the fact that the only valuation done by the mortgagee was after the auction, that being a valuation by Herron Todd White, which valued the property at $300,000.

He seeks an order that the bankruptcy notice be set aside until he can take proceedings by way of counterclaim against the mortgagee. 

The application does seem to be misconceived because the question of whether Mr Burckhardt had a counterclaim, set-off or cross-demand equal to or exceeding the amount of the judgment debt is a matter to be determined by the Court on the hearing of the petition. If he were to so satisfy the Court, that would be a reason for the Court to conclude that the act of bankruptcy specified in s 40(1)(g) of the Bankruptcy Act 1966 (Cth) had not been established.

But in any case, it is plain that his complaint about the alleged inadequate marketing of the property is a matter which could have been raised in the course of the proceedings in the Supreme Court of Queensland.  To the extent that there were documents that have only come to his notice since that hearing, there is nothing to indicate that those were not documents which could have been obtained on discovery or subpoena.  Moreover, as counsel for the mortgagee pointed out in the present hearing, on the best view, if the property was sold at $400,000, there would still be a substantial shortfall. 

So for those reasons the application is dismissed.

I will order that the applicant pay the respondent's costs, including reserved costs.

I certify that this and the preceding page is a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey

Associate:

Dated:            29 July 1998

Counsel for the Applicant:	Mr B R Burckhardt appeared in person
Counsel for the Respondent:	Ms B Evert
Solicitor for the Respondent:	Fetter Gdanski
Date of Hearing:	27 July 1998
Date of Judgment:	27 July 1998