Collier, M.L. v Australia & New Zealand Banking Group Ltd

[1990] FCA 606

606 90

JUDGMENT NO. .....-........ .. .-

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	1
1 No. NG354 of 1990
phNKRUPTCY DISTRICT OF THE STATE OF) NEW SOUTH WALES

BETWEEN :	MARION LOUISE COLLIER Appellant
AND :	AUSTRALIA AND NEW ZEALAND BANKING CROUP LIMITED
Respondent

CORAM:	WILCOX, FOSTER AND HILL JJ
PLACE :	SYDNEY
DATE :	28 SEPTEMBER 1990  RECEIVED

EDERAL COURT OF

AUSTRALIA PRlNUPM

EXTEMPORE REASONS FOR JUDGMENT

THE COURT: The matter before the Court is an appeal against a decision of Lockhart J given on 26 June 1990 wherein his Honour dismissed a motion brought by the appellant, Marion Louise Collier. The notice of motion had seven paragraphs, but the relief sought was summarised by Lockhart J in the following words:

the appeal by consent of 4 June 1990."

"In essence the motion seeks to obtain the leave of the Court to appeal against Einfeld J's orders of 10 November 1988 and 22 December 1988 and the order of the Full Court dismissing

The Full Court proceeding referred to by his Honour was a proceeding in which Mrs Collier challenged the orders of Einfeld J which have just been referred to. On 4 June 1990 the Full Court sat to hear Mrs Collier's appeal. She was represented by counsel. The Australia and New Zealand Banking Group Limited, which claims to be a creditor of her bankrupt estate, was also represented by counsel. The Official Receiver, the trustee of Mrs Collier's bankrupt estate, was represented by its solicitor. Before the matter commenced, the Court was asked to allow some time for the parties to discuss the matter. This application was acceded to.

Later in the day, the Court was informed that the matter had been settled. Mr Blake, counsel for the bank, asked leave to withdraw the bank's appearance. This application was granted, by consent of all parties. Thereupon, on the application of counsel for the appellant, the appeal was dismissed, with no order as to costs. The

which had been brought against the orders made by Einfeld J. effect of the order, of course, was to terminate the appeal	I emphasise that this order was made by consent and on the
application of the present appellant herself.
The application to Lockhart J was not supported by any material showing that the orders which had been made by consent in the Full Court were made as a result of any misunderstanding by Mrs Collier or anybody else. His Honour took the view that there was no material before him which would justify his acceding to the application and he dismissed the application.

.,

Today, an application was made by Mrs Collier to adducz fresh evidence. That application was refused by the Court; firstly, because of failure to make the application in the appropriate form, but, more significantly, because the material which she wished to adduce in evidence, and which was read by each of the members of the Court, would not assist in the resolution of the case. The material consisted of a copy of a deed of release, which was apparently executed by Mrs Collier on 4 June 1990 prior to the appeal being dismissed, and a letter from her then solicitor to herself, apparently in answer to various complaints which she had made.

Mrs Collier has made a number of statements from the
bar table. The gist of these statements seems to be that,

when she agreed to the settlement, she did not appreciate that

Receiver. There is no evidence of that fact and she has not

the deeds of the property would be handed to the Official

sought leave to adduce evidence of any misunderstanding by
her.

The task for this Court is to determine whether the judge appealed from, that is to say Lockhart J, erred in the way in which he disposed of the motion. Nothing has been put before us to suggest that he did. In our view, the appeal is misconceived. It ought to be dismissed.

The Court is of the view that the usual course must be taken. The appeal having failed, the appellant is ordered to pay the respondent's costs of the appeal.

I certify this and the three (3)
preceding pages to be a true copy of
the Reasons for Judgment of
their Honours Justices Wilcox, Foster and Hill.

Date:

Counsel for the Appellant:  Appellant in person

Solicitor for the Official

Trustee in Bankruptcy:	Australian Government Solicitor
Couneel for the Respondent:	G 0 Blake
Solicitors for the Respondent:	Norton Smith & CO

Date(s) of hearing:  28 September 1990