Collins, H. v Pipkin, K.M

[1989] FCA 655

IN THE FEDERAL COURT OF AUSTRALIA ) L ,

SOUTH AUSTRALIA	DISTRICT REGISTRY	)	. NO. SA G104 of 1989	! ,	.	.
GENERAL DIVISION	)	,

BANKRUPTCY DISTRICT OF THE

STATE OF SOUTH AUSTRALIA

ON APPEAL FROM A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

RE: ROBERT WAYNE COLLINS

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A Bankrupt

BETWEEN:  L '

Appellants

(Respondents)

AND :

REVIN MICHAEL PIPKIN
Truscee of the estate of sobert

Wayne Colllns, a Bankrupt

Respondent

(Applicant)

MINUTE OF ORDER

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CORAI.1:	SPENDER, VON DOUSSA & O'LOUGHLIN JJ.
DATE OF ORDER:	27 OCTOBER 1989
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

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The appeal be dismissed with costs. ':I

NOTE :  Settlement and entry of orders is dealt ~11th by Order 36

-. . -. of the Federal Court Rules. I-

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IN THE FEDERAL COURT OF AUSTRALIA	)
SOUTH AUSTRALIA DISTRICT REGISTRY	) NO. SA G104 of 1989
GENERAL DIVISION	)
\
BANKRUPTCY DISTRICT OF THE STATE OF SOUTH AUSTRALIA

ON APPEAL FRON A SINGLE JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

RE: ROBERT WAYNE COLLINS

A Bankrupt

BETWEEN:

AND :

KEVIN MICHAEL PIPKIN
Trustee of the escace of Robert

Nayne Collins, a Bankrupt

Respondent

(Applicant)

CORAI-I : SPENDER, VON DOUSSA & O'LOUGHLIN JJ.

PLACE: ADELAIDE

DATE : 27 OCTOBER 1989

EX TEHPORE REASONS FOR JUDGMENT

TIlE COURT:	.	.
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~ h l s is an appeal from a judgment of a slngle ~udge of

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thls court who found that settlements of moneys in respect of the	I -
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purchase of tvo pieces of real estate were settlements wlthin the	I r ,
meaning of S. 120(1) of the Bankruptcy Act 1966.	; t-.
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In our opinion, the conclusions reached by the learned primary gudge were right for the reasons whlch he gave.

On the appeal two grounds were pressed. The flrst related to the refusal of an adjournment in respect of a witness who was a business associate of the bankrupt, 1-Ir. Colllns. The general posiclon in relatlon to the grant of an adlournment is as expressed in Bloch v. Bloch (1981) 37 A.L.R. 55, particularly in the judgment of Nilson J. at 58; see also Squlre v. Rogers (1979) 39 P.L.R. 106.

There have been cases where the refusal of an adjournment has been the subject of incerventlon by an appellate court but in our view thls clearly is not such a case.

At best for the appellants, che submission at trlal was that an adlournment might enable evidence to be obtalned from Mr. Barlock, in additlon to that vhich was to be found in the two affldavlts of Hr. Harlock thac the learned prlmary judge permitted to be read.

The matter has been taken no further on the appeal.

There has been no suggesclon that in fact a denlal of the

adjournment caused ~njustlce or that materlal evldence is now

available wlnch was not chen available and whlch could not be obtained because of the refusal of the adjournment. In our vlew the matter of an adlournment was a matter for the discretion of the learned prlmary judge and there is no matsrial before us to

5uggest that the exercise of that dlscretlon miscarried.

The other ground argued on the appeal was LhaL the findings of the learned primary judge were against the weight of the evidence; in particular, his Honour had placed too much welght on the designation of the trust account of the funds in Poveys and to the evidence which suggested that Mr. Collins treated those funds as his own. It was suggested that in some way the learned primary judge had reversed the onus, placing an onus on the bankrupt t o show that they did not belong to him.

A fair readlng of his reasons in our view does not permit the concluslon that there was such a reversal of the onus. The detailkd analysis of the evidence by che learned prlmary judge relaring to the source of the funds used for the purchase of both the properties leads to no other concluslon but that his Honour rras correct In reachlng the vlew that rhey were in truth the funds of I'lr. Collins. In addition CO che evldence of the solicitor, Hr. Edgley (to ~ ~ h i c h detalled reference has been made by counsel for the respondent on the appeal), there is the uncontradlcted evldence that Pir. Colllns used a large part of the $ 4 0 0 , 0 0 0 from England and the $ 5 2 6 , 0 0 0 from rhe Unlted States for his own purposes.

It is almost ~mpossible to escape the conclusion that those funds were his. In any event norhlng has been shown to interfere with the conclusion to which the trlal judge came. The appeal should be dismissed for these reasons.

The order of the court is the appeal be dismissed with

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I certify that th ls a d t hc 2 preceding

pages are 3 t ruc ccpy of the iczrons for

judgnient het-ein or t h e Court