Campbell v Official Trustee

[1999] FCA 856

FEDERAL COURT OF AUSTRALIA

Campbell v Official Trustee [1999] FCA 856

KEITH MALCOLM CAMPBELL V THE OFFICIAL TRUSTEE IN BANKRUPTCY & ANOR

N 426 OF 1999

LOIS AUDREY CAMPBELL V THE OFFICIAL TRUSTEE IN BANKRUPTCY & ANOR

N 427 OF 1999

THE HON JUSTICE MARCUS EINFELD AO
SYDNEY
10 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 426 OF 1999

BETWEEN:

KEITH MALCOLM CAMPBELL
Applicant

AND:

THE OFFICIAL TRUSTEE IN BANKRUPTCY
First Respondent

METWAY LEASING LIMITED
Second Respondent

AND

N 427 OF 1999

BETWEEN:

LOIS AUDREY CAMPBELL
Applicant

AND:

THE OFFICIAL TRUSTEE IN BANKRUPTCY
First Respondent

METWAY LEASING LIMITED
Second Respondent

JUDGE:

THE HON JUSTICE MARCUS EINFELD AO

DATE OF ORDER:

10 JUNE 1999

WHERE MADE:

SYDNEY

REASONS FOR JUDGMENT

1. The two applicants apply for an extension of time to appeal from a judgment of Justice Wilcox given on 1 September 1998.  His Honour dealt with essentially two matters in that judgment, of which the only relevant one for present purposes was an application by both applicants for the annulment of a sequestration order made by Justice Hill on 6 June 1996.  His Honour identified two bases upon which the annulment was sought – first, that there was no debt or the debt was less than the minimum permissible in bankruptcy petitions; second, that the order should not have been made because it was procured for an illegitimate purpose, namely to stop the appeal brought against the decision of the Supreme Court Judge which formed the basis of the bankruptcy proceedings.  The decision of the Supreme Court Judge was in fact appealed to the Court of Appeal, but that court dismissed the challenge on the grounds that the appellants were bankrupts and the Trustee had not elected to take over the proceedings.  Only the second ground for annulment was said to be involved in the proposed appeal.

2. Justice Wilcox found that there was no evidence of the suggested improper purpose.  He held in this connection (page 6):

   In order to make good that claim, it would be necessary to show Metway Leasing was actuated by the improper purpose when it decided to commence, or to continue, the bankruptcy proceedings.  There is no evidence along those lines and, therefore, no basis upon which the Court can reach the satisfaction which is a necessary precondition to an annulment under s 153B of the Bankruptcy Act.

   His Honour therefore refused the annulment.

3. The affidavit which has been filed in support of the motion for extension of time does not provide either a draft notice of appeal or any other indication of the grounds upon which that particular finding was impeachable.  In making the application in person on his own behalf and on behalf of his wife, Mr Campbell in fact said that the improper purpose can be gleaned from the second respondent’s statement before Justice Wilcox that this point would not be taken in the Court of Appeal when in fact it was. 

4. I have given attention to the transcript of the proceedings before Justice Wilcox and can find no reference to any such statement having been made.  In some senses the contrary was done in that counsel for the second respondent drew his Honour's attention to the impact of section 60 of the Bankruptcy Act on the appeal and distinguished that fact from the non-impact of the section on another proceeding commenced in the Supreme Court for damages for personal injuries brought by the applicants where that defence or potential bar to the proceedings is not available.  In any event, the consent or taking of the point by the second respondent would have been irrelevant in the Court of Appeal.  It would not have mattered whether they consented to or opposed the hearing of the appeal on the argument they put because the Court would have been prevented from hearing the matter by the operation of the statute with or without the consent of the other party.

5. Nothing else has been drawn to my attention as might give rise even to an arguable error on the part of Justice Wilcox such as might ground an appeal from his Honour's ruling in this respect.  In the circumstances, the necessary prerequisite for an extension of time to file and serve a notice of appeal is lacking.  The applications must therefore be dismissed.

   [AFTER DISCUSSION]

6. The applications for extension of time will be dismissed with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Einfeld.

Associate:

Dated:             10 June 1999

The male applicant appeared in person and for his wife, the female applicant.
Solicitor for the first Respondent:	Mr M. Freidman of Freidman Reeves
Solicitor for the second Respondent:	Mr W Annis-Brown of Lincoln Smith & Company
Date of Hearing:	10 June 1999
Date of Judgment:	10 June 1999