Commonwealth Bank of Australia, in the matter of Martin v Martin

[2000] FCA 1317

FEDERAL COURT OF AUSTRALIA

Commonwealth Bank of Australia, in the matter of Martin v Martin
[2000] FCA 1317

IN THE MATTER OF FREDERICK EDWIN MARTIN AND LORRAINE BEVERLY MARTIN

COMMONWEALTH BANK OF AUSTRALIA v
FREDERICK EDWIN MARTIN & ANOR

N 7203 of 2000

EMMETT J
5 SEPTEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7203 OF 2000

IN THE MATTER OF FREDERICK EDWIN MARTIN AND
LORRAINE BEVERLY MARTIN

BETWEEN:

COMMONWEALTH BANK OF AUSTRALIA
APPLICANT

AND:

FREDERICK EDWIN MARTIN
FIRST RESPONDENT

LORRAINE BEVERLEY MARTIN
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

5 SEPTEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The notice of motion filed 29 August 2000 be dismissed.

2.        The applicant on the motion pay the costs of the respondent on the motion.

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 2000

IN THE MATTER OF FREDERICK EDWIN MARTIN AND

LORRAINE BEVERLY MARTIN

BETWEEN:

COMMONWEALTH BANK OF AUSTRALIA
APPLICANT

AND:

FREDERICK EDWIN MARTIN

FIRST RESPONDENT

LORRAINE BEVERLEY MARTIN
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	5 SEPTEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 11 August 2000 Registrar Quinn made a sequestration order against the estate of Frederick Edwin Martin and Lorraine Beverley Martin.  The order was made on the application of the Commonwealth Bank of Australia (“the Bank”).  The petition on which the order was made was based on was failure to comply with the bankruptcy notice.  The bankruptcy notice was based on a judgment debt in the Local Court.  On 29 August, 2000, the bankrupts filed a notice of motion seeking the following orders:

   “1.To overturn the Sequestration Order N 2703 of 1999 dated 11 August 2000 against Frederick Edwin MARTIN and Lorraine Beverley MARTIN.

   2.That a 3 months period be granted to the Applicants to consider alternate, more practical and desirable actions legally etc. in their best interests and justice by Law.”

2. The application is supported by an affidavit sworn by Frederick Edwin Martin on 29 August 2000, referring to proceedings in the Court of Appeal of New South Wales and the intention of the bankrupts to seek special leave to appeal to the High Court from orders made by the Court of Appeal. 

3. I have before me a draft application for special leave to appeal, being the form that Mr Martin asserts he will seek to file in the High Court.  That document refers to proceedings between the bankrupts and the Bank in the Supreme Court of New South Wales that were heard by Sperling J in November 1998.  The bankrupts were apparently unsuccessful in those proceedings and, on 15 December 1999, filed notice of appeal 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 bankrupts. 

4. In the materials that are relied on by Mr Martin, it is asserted that the reason for the failure to file a notice of appeal was the ill health of Mr Martin.  Be that as it may, on 2 March 2000, the bankrupts filed a notice of motion in the Court of Appeal seeking an extension of time within which to file the notice of appeal.  On 15 May 2000, after several adjournments, a Registrar of the Court of Appeal dismissed that application.  The bankrupts sought an order for review of that decision by the Court of Appeal.  On 10 August 2000, Powell and Heydon JJA heard the application and dismissed it.  The Court of Appeal file has now been closed.

5. Mr Martin says that he wishes to pursue his proposed application to the High Court for leave to appeal from the dismissal of his application for an extension of time within which to appeal to the Court of Appeal.  If I were satisfied that there was some prospect of success in the application for special leave, that may be a ground upon which to consider reviewing the order made by Registrar Quinn.  However, having considered the draft application for special leave, I am not persuaded there is a sufficiently strong prospect of the application being successful to warrant interfering with the exercise of discretion by Registrar Quinn.  In the circumstances, I do not consider that I should set aside the sequestration order.  Accordingly, I would dismiss the notice of motion of 29 August 2000, with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             13 September 2000

Solicitor for the Applicant:	Mr Ireland for L E Taylor
Mr Frederick Martin appeared in person on his own behalf and on behalf of the second respondent
Date of Hearing:	5 September 2000
Date of Judgment:	5 September 2000