Commonwealth Bank of Australia, in the matter of Martin and Anor

[2001] FCA 573

FEDERAL COURT OF AUSTRALIA

Commonwealth Bank of Australia, in the matter of Martin & Anor
[2001] FCA 573

IN THE MATTER OF FREDERICK EDWIN MARTIN AND LORRAINE BEVERLEY MARTIN

COMMONWEALTH BANK OF AUSTRALIA v FREDERICK EDWIN MARTIN & ANOR

N 7203 of 2000

EMMETT J
27 APRIL 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7203 OF 2001

BETWEEN:

COMMONWEALTH BANK OF AUSTRALIA
APPLICANT

AND:

FREDERICK EDWIN MARTIN
FIRST RESPONDENT

LORRAINE BEVERLEY MARTIN
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

27 APRIL 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.   A sequestration order be made against the estate of Frederick Edwin Martin and Lorraine Beverley Martin. 

2.   The petitioning creditor's costs, including reserved costs, if any, be taxed and paid in accordance with the Act.

THE COURT NOTES THAT:

3.   The date of the act of bankruptcy occurred on 3 December 1999.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7203 OF 2001

BETWEEN:

COMMONWEALTH BANK OF AUSTRALIA
APPLICANT

AND:

FREDERICK EDWIN MARTIN
FIRST RESPONDENT

LORRAINE BEVERLEY MARTIN
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	27 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 11 August 2000 Registrar Quinn made a sequestration order against the estates of Frederick Edwin Martin and Lorraine Beverley Martin (“the debtors”).  The petitioner was the Commonwealth Bank of Australia (“the Bank”).

2. The petition was filed in this Court on 7 March 2000.  The order was based on an act of bankruptcy consisting of failure to comply with a bankruptcy notice.  The bankruptcy notice was based on a judgment debt in the Local Court and was served on 12 November 1999 requiring payment within 21 days after service.  The debtors failed to comply with the bankruptcy notice and accordingly an act of bankruptcy was committed on 3 December 1999.

3. On 29 August 2000 the debtors filed a notice of motion seeking the following orders:

   “To overturn the sequestration order in 7203 of 1999 dated 11 August 2000 against Frederick Edwin Martin and Lorraine Beverley Martin.
   That a three month period be granted to the applicants to consider alternate, more practical and desirable actions legally, etcetera, in their best interests and justice by law.”

   That motion came before me on 5 September 2000.  I ordered that the motion be dismissed with costs.  There was then an appeal to the Full Court.  The Full Court took the view that the motion should be treated as a motion for review of the decision of Registrar Quinn and that it was incumbent upon the judge dealing with that review to treat the proceeding as a hearing de novo of the petition.  The Full Court therefore set aside the orders that I made and remitted the matter to me for further consideration.

4. I am satisfied that the debtors committed the act of bankruptcy alleged in the petition. I am also satisfied with the proof of the other matters of which subsection 52(1) of the Bankruptcy Act 1966 (Cth) requires proof. However, Mr Martin appears in person and, with leave, on behalf of his wife. He seeks either that the petition be dismissed or that the hearing of it be adjourned pending the hearing of an application for special leave which is currently pending before the High Court.

5. The material before me indicates that there were proceedings between the debtors and the Bank in the Supreme Court of New South Wales.  Those proceedings were heard by Sperling J in November 1998.  The debtors were apparently unsuccessful in the proceedings and on 15 December 1999 they filed notice of appeal to the Court of Appeal of New South Wales without appointment.  Under the rules of the Supreme Court of New South Wales, where such a document is filed, the prospective appellant must file a notice of appeal with an appointment within three months.  No such notice of appeal was filed on behalf of the debtors.

6. Mr Martin asserts that the reason for the failure to file a notice of appeal was his ill health and there is some evidence of his ill health before me.  In any event, on 2 March 2000 the debtors filed a notice of motion in the Court of Appeal seeking an extension of time within which to file a notice of appeal.  On 15 May 2000, after several adjournments, a registrar of the Court of Appeal dismissed that application.  The debtors sought an order for review of that decision by the Court of Appeal on 10 August 2000. Powell and Heyden JJA heard the application and dismissed it.  The Court of Appeal file has now been closed. The debtors nevertheless wants to pursue their application for special leave to appeal to the High Court.

7. The application for special leave filed on behalf of the debtors seeks special leave to appeal from the whole of the decision of the Court of Appeal given on 10 August 2000.  As is apparent from what I have just said, that order was an interlocutory order and involved a matter of discretion.  It seems to me therefore to be highly unlikely that leave will be granted.

8. The grounds specified in the application are not entirely clear to me.  They begin by asserting that “[t]he Court of Appeal erred as a matter of law in holding the Commonwealth Bank was entitled to proceed against and victimise unfairly” the debtors.  The grounds also include a reference to the fact of Mr Martin's medical impediments.  It contains an assertion that “Justice Sperling did not abide by the True Definition of Justice, which has inherent Fairness to both parties by Law”.  It is also asserted that his Honour erred in that “the Commonwealth Bank witnesses and handler of the 1984 bank loan admitted under oath that there had been falsification by exaggeration”.

9. I do not have before me the reasons of Sperling J for the decision that he made. However that is not the question that will be before the High Court.  The only question is whether the High Court should interfere with the exercise of discretion by the Court of Appeal in declining to review the decision of the registrar dismissing the application for an extension of time within which to file a notice of appeal.  As I have said, I consider that the prospects of leave being granted to hear that question are very slight.

10. In the circumstances there does not appear to me to be any utility in adjourning the hearing of the petition.  Accordingly, I shall make a sequestration order against the estate of Frederick Edwin Martin and Lorraine Beverley Martin.  I shall order that the petitioning creditor's costs, including reserved costs, if any, be taxed and paid in accordance with the Act.  As I have noted, the date of the act of bankruptcy was 3 December 1999.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             16 May 2001

Solicitor for the Applicant:	L E Taylor
Counsel for the Respondents:	The respondent appeared in person, and on behalf of the second respondent
Date of Hearing:	27 April 2001
Date of Judgment:	27 April 2001