Charatsis v Bendigo and Adelaide Bank Limited - [2015] FCCA 548

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHARATSIS v BENDIGO & ADELAIDE BANK LIMITED

[2015] FCCA 548

Catchwords:
BANKRUPTCY – Application for extension of time for compliance with a bankruptcy notice pending appeal to the Full Court of the Supreme Court of South Australia – bankruptcy notice founded on judgment debt entered in the District Court of South Australia in default of appearance – application to District Court to set aside judgment unsuccessful – factors relevant to the exercise of the discretion arising under section 41(6A) of the Bankruptcy Act to extend time – merits of appeal.

Legislation:

Bankruptcy Act 1966, s.40(1)(g), 41(6A), 41(6C)

Olivieri v Stafford (1989) 25 FCR 413
Re Taylor; Ex Parte Deputy Commission of Taxation (Cth) (1983) 74 FLR 377
Conway v Jackson (2001) 107 FCR 201
Byron v Southern Star Group Pty Ltd (1997) 73 FC264

Applicant:

TERRY JOHN CHARATSIS

Respondent:

BENDIGO & ADELAIDE BANK LIMITED

File Number:

ADG 259 of 2014

Judgment of:

Judge Brown

Hearing date:

3 March 2015

Date of Last Submission:

3 March 2015

Delivered at:

Adelaide

Delivered on:

12 March 2015

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Mr Thomas

Solicitors for the Respondent:

Scott Lawyers

ORDERS

The application for review filed on 3 February 2015 is dismissed.
The court declares that the time for compliance with bankruptcy notice number 171745 issued on 12 May 2014 expired on 5 February 2015.
The applicant pay the respondent’s costs, including reserved costs, to be agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 259 of 2014

TERRY JOHN CHARATSIS

Applicant

And

BENDIGO & ADELAIDE BANK LIMITED

Respondent

REASONS FOR JUDGMENT

Introduction

Before the court is an application for extension of time to comply with a bankruptcy notice. The application is made pursuant to the provisions of section 41(6A) of the Bankruptcy Act 1966 (Cth) “the Act”, which reads as follows:
“(6A)Where, before the expiration of the time fixed for compliance with the requirements of a Bankruptcy notice:
(a)proceedings to set aside a judgment or order in respect of which the Bankruptcy notice was issued have been instituted by the debtor; or
(b)an application has been made to the Court to set aside the Bankruptcy notice;
the Court may, subject to subsection (6C), extend the time for compliance with the Bankruptcy notice.”
The bankruptcy notice in question was issued on 12 May 2014. The bankruptcy notice was founded on a judgment debt entered on behalf of the Bendigo and Adelaide Bank Limited in the amount of $42,234.51 plus costs.
The judgment was entered on 17 March 2014, in the District Court of South Australia. The judgment debtor was Terry John Charatsis, the applicant in these proceedings.
Pursuant to section 40(1)(g) of the Act, a debtor commits an act of Bankruptcy:
“(g)if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a Bankruptcy notice under this Act and the debtor does not:
(i)where the notice was served in Australia—within the time specified in the notice; or
(ii)where the notice was served elsewhere—within the time fixed for the purpose by the order giving leave to effect the service;
comply with the requirements of the notice or satisfy the Court that he or she has a counter‑claim, set‑off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter‑claim, set‑off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;”
The bankruptcy notice required Mr Charatsis to pay the solicitors for the Adelaide and Bendigo Bank Ltd the sum of $42,234.51 no later than 4 July 2014 or to make other arrangements, satisfactory to the Bank, for the settlement of the debt. There is no dispute between the parties that, as at the date of these proceedings, the debt remains outstanding.

Background

The procedural history, and the relevant background, to this application are somewhat complex. It is necessary, as best I can, to outline this history.
Mr Charatsis (hereinafter referred to as “the applicant”) is a legal practitioner, who has suffered from a depressive illness from time to time. At some time in 2008, he borrowed the sum of approximately $35,000.00 from the Adelaide and Bendigo Bank (hereinafter referred to as “the Bank”) by way of a personal loan. The applicant defaulted in paying instalments relating to the loan.
As a consequence, in March of 2011, the Bank commenced proceedings against the defendant in the District Court of South Australia. According to the processes of the District Court, the parties were referred to a settlement conference, which took place on 9 September 2011. At this settlement conference, the parties were able to compromise the action.
It appears uncontroversial that it was agreed that, from 11 October 2011 onwards, the applicant would pay the Bank instalments of $330.00 per month, until the debt was paid in full. In addition, in the event of default, the applicant would consent to judgment in favour of the Bank for the amount of its claim in the District Court proceedings.
The Bank alleges that no payments have been received from the applicant, pursuant to the settlement agreement, since November of 2012. As a consequence, on 24 July 2013, the Bank instructed its solicitors to renew the District Court proceedings against the applicant. As a consequence, the District Court proceedings were listed for directions on 19 August 2013.
Thereafter, the proceedings have had a somewhat convoluted passage through the District Court. Concurrently with this passage, the applicant lodged a complaint with the Financial Ombudsman, presumably about the conduct of the Bank, which was ultimately rejected.[1]
[1] See affidavit of Janelle Irene Scott filed 15 January 2015 at paragraph 9
On 19 August 2013, the Bank was granted leave by the District Court to file a further statement of claim making reference to the terms of the compromise reached between the parties on 9 September 2011. Later again, on 30 September 2013, the applicant filed a further defence.
On 23 October 2013, the Bank filed an application, in the District Court, seeking an early trial of its claim relating to the settlement agreement reached between the parties earlier. Orders were also made for discovery and inspection of documents.
On 4 November 2013, Mr Charatsis filed a further defence. I have been provided with a copy of this defence.[2] In the defence, Mr Charatsis claimed the following:
·the loan between him and the Bank was subject to the provisions of National Consumer Credit Protection Act 2009;
·he had been suffering from anxiety and severe depression at the time default notices had been issued by the Bank, which had affected his capacity to discharge his obligations arising under the loan agreement;
·as a consequence, he asserts that the Bank should have capitalised the arrears and extended the time for payment given his illness and its failure to do so amounted to unconscionable conduct;
·in the alternative, Mr Charatsis asserts that he should have been granted further time to pay the loan as a consequence of the hardship provisions contained in the National Consumer Credit Protection Act 2009.
[2] See annexure TJC2 to the affidavit of Terry John Charatsis filed 16 January 2015
In his defence, Mr Charatsis acknowledges that he agreed to make repayments to the Bank at $330.00 per month but denies that he agreed to make any payments on account of interest or legal fees. In this context, he is critical that the Bank did not provide a detailed deed of settlement.
On 5 November 2013, the parties were advised by the District Court that the matter had been listed for trial on 17 March 2014. Prior to the trial, the applicant applied to have the hearing vacated, on the basis that he was unwell as a consequence of depression. His application was dismissed on 17 December 2013, on which occasion the hearing of the trial, on 17 March 2014, was confirmed.
On Friday, 14 March 2014, the applicant filed an affidavit in the District Court, in which he claimed that he was unable to represent himself at the trial scheduled for the following Monday due to incapacity. The affidavit was not attached to any application and was not served on the solicitors for the Bank until late on Sunday, 16 March 2014.
The applicant did not attend the trial on 17 March 2014. In these circumstances, Judge Barrett entered judgment for the Bank, in default of an appearance from Mr Charatsis, in the sum of $42,234.51 plus costs. It was this judgment, as previously indicated, which led to the Bankruptcy notice, which is the subject of these proceedings.
The current round of proceedings, relating to the bankruptcy notice, commenced in this court with an application by the Bank. On 12 June 2014 the Bank applied to dispense with personal service of the bankruptcy notice on Mr Charatsis.
This application was dealt with by Registrar Bochner on 20 June 2014 and was supported by an affidavit of a process server, Mr Bruce-Gordon, which indicated that Mr Charatsis had apparently vacated his last known address.
In these circumstances, Registrar Bochner ordered the dispensation of personal service of the bankruptcy notice on Mr Charatsis and in lieu thereof that it be provided to the applicant by electronic means not later than 27 June 2014 with the date of service to be deemed 4 July 2014.
On 17 July 2014, about a fortnight after service of the bankruptcy notice, the applicant filed an interlocutory application, in the District Court, seeking to set aside the default judgment entered against him on 17 March 2014. Ultimately, this application was heard by Judge Barrett on 31 October 2014, with judgment delivered on 13 January 2015. I have been provided with a copy of His Honour’s decision.[3]
[3] See exhibit JIS5 to the affidavit of Janelle Irene Scott filed 15 January 2015
Judge Barrett declined to set aside the judgment entered in favour of the Bank. His Honour had before him affidavit evidence of Mr Charatsis. Importantly, Judge Barrett permitted counsel for the Bank to cross-examine Mr Charatsis, and in his reasons for judgment, Judge Barrett records significant admissions by the applicant regarding the debt in question.
The judgment of Judge Barrett is central to the current proceedings. Mr Charatsis has appealed to the Supreme Court of South Australia. His notice of appeal was filed on 27 January 2015. As a consequence of this appeal, he seeks to be given an extension of time to comply with the relevant bankruptcy notice issued against him, until after the determination of his appeal to the Full Court of the Supreme Court of South Australia.
On 29 January 2015, Registrar Grant ordered that the time for compliance with the bankruptcy notice be extended to 5 February 2015. Mr Charatsis has filed an application for review of that decision. These reasons for judgment arise as a consequence of this application for review brought by Mr Charatsis.
The Bank seeks the dismissal of the review. As previously indicated, in lieu of the order made by Registrar Grant, Mr Charatsis seeks the extension of time for compliance with the bankruptcy notice until his appeal to the Full Court of the Supreme Court has been determined.
Pursuant to rule 20.03 of the Federal Circuit Court Rules, such a review is to proceed by way of a hearing de novo. As such, this is not an appeal from the Registrar’s decision. Rather I must consider afresh the relevant material.

The judgment of Judge Barrett

Judge Barrett noted that the power to set aside a default judgment is subject to discretion. Three major considerations influence the exercise of such discretion. Firstly, a reasonable explanation for the default; secondly, the existence of an issue to be tried, which if examined by the court might reasonably lead to the making of a different order to that which is sought to be set aside; thirdly, the balance of prejudice.
It was found, by Judge Barrett, that there was a loan made by the Bank to the applicant, which had fallen into arrears. This had led to the Bank commencing proceedings, which were initially compromised on 9 September 2011, as evidenced by a hand-written agreement signed by both parties.
Judge Barrett found that the essential terms of the agreement were that from 11 October 2011 the defendant would pay instalments of $330.00 per month until the debt was paid. In default of payment, the defendant would consent to judgment in favour of the plaintiff for the plaintiff’s claim.
Judge Barrett found that Mr Charatsis did not dispute the debt nor did he dispute that he had defaulted in the payment of several loan instalments. It was found that Mr Charatsis had paid six monthly instalments between October 2011 and March 2012 and then made no payments between April and July 2012. He resumed making payments between August and November 2012, but had made no payments since November 2012.
His Honour summarised Mr Charatsis’ defence to the Bank’s claims as follows:
·the Bank had breached a statutory duty of conscionability, by not extending the time in which to pay the instalments;
·the Bank had failed to provide a promised deed after the execution of the settlement agreement in September 2011;
·the Bank had failed to review the instalment plan after a three month moratorium which was apparently agreed in early 2013.
The affidavit filed by the applicant on 14 March 2014 was described by Judge Barrett as providing few details of his incapacity. It did however annex a letter from his psychiatrist, which indicated that Mr Charatsis was incapacitated from working and representing himself in court.
In the judgment, Judge Barrett summarised the difficult circumstances, which confronted the applicant in the period following Christmas of 2013 and the early part of 2014, leading up to the default judgment. His Honour accepted that Mr Charatsis’ marriage had broken down in this period and, as a result, he had found himself to be homeless. These were acknowledged to be factors likely to have exacerbated his depressive illness.
However, His Honour also found that Mr Charatsis had attended the District Court on 13 March 2014 in respect of his own application to have a caveat lodged against the title to his home, by another financier, lifted. However, it was also noted that Mr Charatsis did not pursue this application.
Judge Barrett further noted that it was not until 17 July 2014 that Mr Charatsis commenced proceedings to have the default judgment set aside. In all these circumstances, it was not accepted by the District Court that Mr Charatsis had provided a reasonable explanation for his non-appearance on 17 March 2014. Judge Barrett considered that, as a legal practitioner, Mr Charatsis must have known that he should attend court for the trial and what were the likely consequences if he did not do so.
Significantly, after hearing evidence from Mr Charatsis, who was represented by counsel at the hearing of the application to set aside the default judgment, Judge Barrett determined that none of the applicant’s grounds of defence disclosed merit. In particular the District Court was not persuaded that Mr Charatsis’ evidence disclosed any degree of unconscionable conduct on the part of the Bank.
Judge Barrett had before him an affidavit deposed by the applicant on 22 October 2014 in support of his application to set aside the default judgment. This court has also been provided with a copy of this affidavit.[4] In the affidavit Mr Charatsis asserted that he had bona fide defences to the enforceability of the settlement agreement entered by him on 9 September 2011.
[4] See Annexure TJC 3 to the affidavit of the applicant filed on 16 January 2015
Mr Charatsis alleges that the handwritten document compiled on that day was to be replaced by a formal deed prepared by the Bank’s solicitors. He claims that this deed was to include a mechanism for him to make up any missed instalments, after fair notice had been given. Mr Charatsis claims that he sought such an arrangement because he was concerned about his fragile health and the potential for him to default on the agreement in future and wished some form of protection against such an eventuality.
In addition, Mr Charatsis claims that he felt pressured, by the Bank, at the settlement conference and agreed to pay instalments beyond his means. He asserts that he felt anxious, overwhelmed and utterly compliant with whatever the representatives of the Bank asked of him. It was in these circumstances that he signed the settlement agreement in question.
As previously indicated, it is clear that Mr Charatsis also made a complaint, concerning the Bank’s dealings with him, to the Financial Ombudsman Service, at some time in early 2013. Ultimately, Mr Charatsis concedes that his complaint did not proceed, on the basis that there would be a moratorium in respect of the payment of instalments. Mr Charatsis has provided a copy of a letter from the Bank to him dated 21 March 2013, which indicates the Bank’s agreement not to enter judgment in respect of payments due between March and May of 2013.
It should be noted that Mr Charatsis’ claims of unconscionable behaviour, on the part of the Bank, during and after the settlement conference of September 2011, were raised only after the Bank sought to proceed against him. The evidence also indicates that the Bank provided some forbearance to Mr Charatsis, regarding repayment of the loan instalments, although not as much as he would have wished.
In addition, in my view, in his defence, Mr Charatsis raised issues regarding alleged breaches of the National Consumer Protection Code of a generic manner. He provides no particulars of the specific provisions, which he alleges have been breached and the actual incidents which found those breaches.
In my view, his case is an inchoate one, which alleges that he has not been fairly dealt with by the Bank because of his mental incapacity. It is also clear that the Financial Ombudsman Service had a limited level of involvement in the matter and no formal complaint proceeded.
What is also clear from the material filed in the District Court is that Mr Charatsis does not dispute that he is indebted to the Bank as a consequence of the loan agreement which he entered in 2008. In addition, he does not dispute that the loan fell into arrears thereafter leading to the institution of proceedings against him, which were compromised in September 2011, on the basis that he would pay off the debt in instalments.
In this context, Judge Barrett found that “subsequent events make it clear that he [the applicant] was not in position to pay instalments.” The court rejected the suggestion of any unconscionability arising in the instalment agreement, particularly given Mr Charatsis’ status as a legal practitioner. Rather Judge Barrett regarded the matter as being one centred on an agreed compromise between the parties, which had been admittedly breached by the applicant.
Judge Barrett also rejected the applicant’s complaints regarding the alleged failure of the Bank to produce a deed following the settlement conference. His Honour said as follows:
“There is no reason to hold that the settlement agreement was not binding on the parties until the production of the deed, assuming such a deed was promised. The defendant does not suggest the plaintiff indicated when such a deed would be prepared. In pursuance of the settlement agreement, the defendant made the agreed payments for six months. There is no reason to believe that any deed produced in, say, those six months, would have included terms more favourable to the defendant that the agreement. I find this head of defence lacks merit.”[5]
[5] See Decision of Judge Barrett dated 13 January 2015 at [33]

Judge Barrett also rejected the aspect of the defence based on the alleged failure of the Bank to provide Mr Charatsis with a further review following the agreed payment moratorium. His Honour found it unclear that Mr Charatsis would have been offered such a further moratorium and even if it had agreed to be offered, which was in dispute, it was irrelevant as, at the date of the application, he had in fact paid no further instalments.
Under the heading Prejudice Judge Barrett discussed the consequences, for each of the parties, if the judgment was not set aside. In this context, His Honour was aware that the judgment would likely found an act of bankruptcy against Mr Charatsis and this would have serious implications for his right to practice as a legal practitioner. His Honour said as follows:
“I do not believe I am entitled to have regard to what I described as secondary consequences of the refusal of the application. I think I can only take account of the consequence that if the judgment stands the defendant will be denied the opportunity to defend the action. However, if I am wrong about that, and if I should have regard to the secondary consequences, the fact remains that I have concluded that the defendant’s case is without merit. That conclusion is I think the critical one on this application. If I were to grant the application I would be permitting the defendant to pursue what I consider to be an unmeritorious case. In those circumstances the plaintiff would be unreasonably exposed to the possibility, in fact I think the likelihood, of financial loss.”

The Grounds of Appeal to the Supreme Court

In his notice of appeal filed on 27 January 2015, Mr Charatsis seeks that the default judgment entered on 17 March 2014 be set aside and the application of the Bank be re-listed for hearing. He has provided five grounds of appeal, which can be summarised as follows:
·the trial Judge erred in finding that the applicant’s psychiatric condition and personal circumstances were not sufficient to explain his failure to attend at trial;
·the trial Judge erred in finding that his most recent defence lacked merit;
·the trial Judge erred in his assessment of prejudice to the applicant, particularly in terms of his possible implications for his right to practice as a legal practitioner, if the judgment was not set aside;
·the trial Judge did not properly consider the application to set aside the default judgment in the overall light of the applicant’s documented psychiatric conditions.
·the applicant, due to his embarrassment failed to provide a proper explanation to Judge Barrett concerning his non-attendance at the original trial.
In my view, what is most significant about these various grounds of appeal is that none of them seek to challenge the original debt of 2008 between the applicant and the Bank or the rationale for the reinstitution of the proceedings by the Bank, which was that Mr Charatsis had failed to comply with the agreed regime of instalment payments.
It is also noteworthy that Mr Charatsis was represented by counsel at the hearing before Judge Barrett and His Honour clearly considered the applicant’s difficult circumstances, particularly his psychiatric illness. In these circumstances, it is difficult to see that there is any merit in Mr Charatsis’ contention that he was unfairly deprived of the opportunity to explain why he failed to appear at court and that insufficient consideration was given to his particular circumstances.
In addition, regardless of the potential unconscionability or otherwise of the Bank’s actions in respect of its failure to produce a settlement deed; its failure to allow a greater moratorium in respect of the payment of instalments; and the conduct of the Bank at the settlement conference itself; there was no evidence before Judge Barrett that Mr Charatsis was in any position to resume the payment of any instalments, in respect of the unchallenged debt. This was a specific finding of Judge Barrett, which arose following oral evidence from Mr Charatsis.

The applicable legal principles

It is Mr Charatsis’ position that it is appropriate for the court to extend the time for his compliance with the bankruptcy notice in question because there are proceedings on foot, which may have the consequence of setting aside the judgment debt, on which the bankruptcy notice depends.
However, he is not entitled to that extension merely because he has filed a notice of appeal. Rather, the court has a discretion to grant such an extension, which is to be exercised subject to considerations arising from section 41(6C) of the Act, which reads as follows:
(6C) Where:
(a)a debtor applies to the Court for an extension of the time for complying with a bankruptcy notice on the ground that proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; and
(b)the Court is of the opinion that the proceedings to set aside the judgment or order:
(i) have not been instituted bona fide; or
(ii) are not being prosecuted with due diligence;
the Court shall not extend the time for compliance with the bankruptcy notice.
In Olivieri v Stafford[7] Gummow J said as follows:
“… section 41(6C) deals with the debtor who is dragging his feet or toying with his creditor. The court or the registrar is obliged not to extend the time for compliance with the bankruptcy notice if the court or the registrar is of the opinion that the proceedings to set aside the judgment or order have not been instituted bona fide or are not being prosecuted with due diligence …”
[7] Olivieri v Stafford (1989) 25 FCR 413 at 429
The discretion, conferred by section 41(6A) of the Act has been described as being “at large”[8]. The Full Court of the Federal Court considered the exercise of the discretion in Conway v Jackson and said as follows:
“In exercising the discretion whether or not to extend the time for compliance with a bankruptcy notice, the creditor should not be routinely frustrated from enforcing the judgment by the device of the institution of an appeal. Section 41(6C), to an extent, recognises that positon.”[9]
[8] Re Taylor; Ex Parte Deputy Commission of Taxation (Cth) (1983) 74 FLR 377 at 379 per Sheppard J
[9] Conway v Jackson (2001) 107 FCR 201 at 210 [30]
It is the submission of Mr Thomas, counsel for the Bank, that any analysis of the proceedings between the applicant and his client in the District Court indicate a pattern of delay on the part of Mr Charatsis. I agree with this submission.
Mr Charatsis unsuccessfully applied to delay the trial. It is also apparent that he only applied to set aside the default judgment, when he became aware of the bankruptcy notice, which in turn was only served upon him as a consequence of an application for substituted service.
The discretion arising under section 41(6A) requires the court to consider the nature of the proceedings commenced by the applicant for an extension of time to set aside the relevant judgment, which founds the applicable bankruptcy notice.
Although the court is usually loathe commenting upon the prospects of success or otherwise of an appeal in a different court, the merits of such an appeal may be relevant to the bona fides of the applicant in question.
In Byron v Southern Star Group Pty Ltd Lehane J said as follows:
“[T]he authorities suggest that, reluctant as the court may in most cases be to enter into the merits of an appeal, the merits may be relevant, at least where the court is able to regard the prospects of success as ‘slight’ … or possibly, in a case where it is apparent that the prospects of success are unusually strong …”[10]
[10] Byron v Southern Star Group Pty Ltd (1997) 73 FC264 at 269-270
In this case, I consider Mr Charatsis’ prospects of success, on appeal, as being far from unusually strong. The appeal is from a discretionary judgment of Judge Barrett, which occurred following a hearing in which the applicant gave evidence and was represented by counsel.
In order to be successful, on an appeal from a discretionary judgment, the applicant must show that the Full Court has no alternative other than to conclude that Judge Barrett’s discretion miscarried because it was exercised unreasonably. It is not open to the Full Court to exercise the discretion afresh.
In my view, the most significant factor, regarding any assessment of Mr Charatsis’ prospects of success, on appeal, is the fact that he does not dispute that he is indebted to the Bank, and at a settlement conference, he agreed to pay loan instalments, which have subsequently fallen into arrears and remain so.
The effect of the settlement agreement was that default in payments of instalments would crystallise the entire debt. In this context, after hearing evidence from Mr Charatsis, Judge Barrett concluded that the applicant was unable to resume payment of the instalments and the total loan was due.
In all these circumstances, I accept the submissions of counsel for the Bank, Mr Thomas that the applicant’s prospects of success on appeal must be regarded as tenuous.
In his submissions to the court Mr Thomas correctly points out that the court is not dealing with the actual sequestration of the applicant’s estate. Rather, it is considering whether to extend the time for Mr Charatsis to comply with the bankruptcy notice served upon him.
The bankruptcy notice is a mechanism which is designed to compel any debtor to confront his financial situation or, if he has no alternative, to commit an act of bankruptcy. Such a situation has relevance not only for Mr Charatsis and the Bank, but also for other potential or actual creditors of Mr Charatsis.
In his submissions, Mr Thomas says as follows:
“Public policy demands that those creditors, as well as the respondent in this case, have their act of bankruptcy at the earliest available opportunity. To delay commission of that act delays, amongst other things, the relevant relation back period should the debtor ultimately become bankrupt.[11]
[11] See respondent’s submissions filed 2 March 2015 [at 29]
It seems probable that Mr Charatsis has other creditors. He alluded to difficulties with another financier in his evidence to Judge Barrett. In Conway v Jackson the Full Court said as follows:
“The delay in the commission of the act of bankruptcy, if ultimately the requirements of a bankruptcy notice are not complied with and a sequestration order is made, by an extension of time to comply with a bankruptcy notice may therefore have significant consequences of the creditors of the bankrupt.”[12]
These considerations are relevant to the exercise of the discretion arising in this matter.
[12] Conway v Jackson (supra) at 210

Conclusions

I have come to the conclusion that taking into account the overall circumstances of this matter, particularly that Mr Charatsis was unsuccessful in his application to set aside the judgment debt and does not dispute that he is indeed indebted to the Bank as a consequence of the loan agreement concluded in 2008 that I should not exercise the discretion conferred upon me pursuant to section 41(6A) in favour of the applicant.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 12 March 2015

[6] Ibid at [39]