Carroll v JB Cameron (Victoria) Pty Ltd ACN 055 861 240

[2000] FCA 1213

FEDERAL COURT OF AUSTRALIA

Carroll v JB Cameron (Victoria) Pty Ltd ACN 055 861 240 [2000] FCA 1213

GEOFF CARROLL v JB CAMERON (VICTORIA) PTY LTD ACN 055 861 240
V 94 OF 2000

DRUMMOND, SACKVILLE AND DOWSETT JJ
21 AUGUST 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 94 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GEOFF CARROLL APPELLANT
AND:	JB CAMERON (VICTORIA) PTY LTD ACN 055 861 240 RESPONDENT

JUDGES:	DRUMMOND, SACKVILLE AND DOWSETT JJ
DATE OF ORDER:	21 AUGUST 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The costs of the respondent be paid out of the estate of the bankrupt in accordance with the priority fixed by s 109 the Bankruptcy Act 1966 (Cth).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 94 OF 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GEOFF CARROLL APPELLANT
AND:	JB CAMERON (VICTORIA) PTY LTD ACN 055 861 240 RESPONDENT

JUDGES:	DRUMMOND, SACKVILLE AND DOWSETT JJ
DATE:	21 AUGUST 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. DRUMMOND J:      This is an appeal by Mr Carroll in respect of whom a sequestration order was made by a Registrar in December 1999.  Mr Carroll sought a review of that decision and the matter came before Sundberg J in February last.  His Honour refused to interfere.

2. The issues that Mr Carroll raised before his Honour in seeking to challenge the sequestration order were primarily the judgment creditor’s conduct in refusing to accept a proposal repeatedly made by Mr Carroll to pay off the judgment debt by way of instalments and secondly, considerations of health that are said to have justified presumably indefinite adjournment of the petition.  His Honour considered the evidence on those issues and concluded that they were insufficient to justify interfering with the sequestration order.  His Honour in his reasons identified the facts that there was no dispute by Mr Carroll that the judgment debt was due and owing.

3. So far as Mr Carroll’s contention maintained in this Court, that the judgment creditor was disentitled to the sequestration order because of his offers to pay off the debt by instalments, the undisputed facts are that the Registrar who dealt with the petition on a number of occasions granted adjournments of the hearing, on several occasions with the consent of the judgment creditor, and on at least one occasion, over the opposition of the judgment creditor, at Mr Carroll’s request so that he could have yet more time to pay off the judgment debt.  As Sundberg J observed, nothing came of the proposals advanced by Mr Carroll to clear the judgment debt by realising the proceeds of certain policies of insurance.  Some moneys were raised and offered, but they were well short of that which was necessary to pay the full amount of the judgment debt.

4. Mr Carroll, it is clear, has encountered a range of financial and personal problems over the past few years.  But the issue before Sundberg J, who reviewed the sequestration order, and for this Court is whether there is any error on the part of the Registrar in making the sequestration order.  We can see no deficiency in the approach taken by Sundberg J.  The order in our view was properly made and Sundberg J’s decision to refuse to review it was fully justified.

5. I should say that, in addition to reading Mr Carroll’s quite lengthy submissions, I have had regard to the submissions in writing prepared by the respondent.  It is plain that the respondent has not treated Mr Carroll’s appeal lightly.  Detailed and careful submissions have been prepared by the respondent and the conclusion I have reached takes into account what the respondent has to say.

6. I would propose for those reasons that the appeal be dismissed.

7. SACKVILLE J:         I agree both with the reasons given by the learned presiding judge and the orders that are proposed.

8. DOWSETT J: I also agree.

9. DRUMMOND J: The order of the Court will therefore be the appeal is dismissed. There will be an order that the costs of the respondent be paid out of the estate of the bankrupt in accordance with s 109 the Bankruptcy Act 1966 (Cth).

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Drummond, Sackville and Dowsett.

Associate:

Dated:             28 August 2000

Counsel for the Appellant:	The appellant appeared in person.
Counsel for the Respondent:	Mr AW Ellis
Solicitor for the Respondent:	John R Buman and Co
Date of Hearing:	21 August 2000
Date of Judgment:	21 August 2000