Conde v Hunter
[2010] FCA 920
FEDERAL COURT OF AUSTRALIA
Conde v Hunter [2010] FCA 920
Citation: Conde v Hunter [2010] FCA 920 Appeal from: Conde v Hunter [2010] FMCA 751 Parties: MILTON ARNOLDO CONDE v JOHN LAWRENCE HUNTER and OFFICIAL TRUSTEE IN BANKRUPTCY File number: QUD 56 of 2010 Judge: REEVES J Date of judgment: 17 August 2010 Date of hearing: 17 August 2010 Place: Brisbane Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 7 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second Respondent: Mr G Del Villar Solicitor for the Second Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 56 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MILTON ARNOLDO CONDE
AppellantAND: JOHN LAWRENCE HUNTER
First RespondentOFFICIAL TRUSTEE IN BANKRUPTCY
Second Respondent
JUDGE:
REEVES J
DATE OF ORDER:
17 AUGUST 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The notice of appeal filed on 25 February 2010 be dismissed.
2.The appellant pay the second respondent’s costs of the appeal, to be agreed or assessed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 56 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MILTON ARNOLDO CONDE
AppellantAND: JOHN LAWRENCE HUNTER
First RespondentOFFICIAL TRUSTEE IN BANKRUPTCY
Second Respondent
JUDGE:
REEVES J
DATE:
17 AUGUST 2010
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Mr Conde has appealed the decision of Burnett FM given on 11 February 2010 dismissing his application under s 153B of the Bankruptcy Act 1966 (Cth) to annul the sequestration order made against him on 7 October 2009. Since the decision appealed from is a judgment of the Federal Magistrates Court, I am exercising the appellate jurisdiction of the Court as a single judge under s 25(1AA)(a) of the Federal Court of Australia Act 1976 (Cth). At the hearing of this appeal this morning, Mr Conde appeared in person unrepresented. There was no appearance for the first respondent, but Mr Del Villar appeared for the second respondent. He told me he appeared primarily to assist the Court.
Mr Conde made written and oral submissions, as did Mr Del Villar. It became apparent that Mr Conde’s sole argument, as it was before Burnett FM, was that his sequestration order was invalid because the order of Searles J made in the District Court on 14 November 2008 was not a final judgment or order, as it must be under s 40(1)(g) of the Bankruptcy Act 1966 (Cth). In essence, Mr Conde says that Order 3 of the judgment of Searles J upon which his sequestration order was eventually founded was an interim order and not a final order. Order 3 was in the following terms:
Order that the Plaintiff [ie, Mr Conde] pay the Defendant [ie, Mr Hunter] costs of today’s application to be assessed on the standard basis.
The other three orders made at the same time were to strike out Mr Conde’s amended statement of claim, to give him leave to replead within 21 days and to stay the proceedings, pending payment of the costs under Order 3 that I have just mentioned. The materials before me show that the costs under Order 3 were eventually assessed at a sum of $7,980.87 and a cost assessor’s certificate was issued for that amount on 13 March 2009. As I mentioned before, that debt formed the basis of the sequestration order that was made against Mr Conde. The long history of this matter shows that the question whether the judgment of Searles J made on 14 November 2008 – specifically Order 3 – was a final judgment or order has now been raised by Mr Conde and determined against him on a number of previous occasions. The first was in the decision of Wilson FM given on 23 July 2009. That dealt with an application brought by Mr Conde to set aside his sequestration order. At [3] of that decision, Wilson FM found that Order 3 of the judgment of Searles J: “was a final order, in so far as it concerned that issue”, ie the issue of costs. The second decision was that of Collier J on appeal from the decision of Wilson FM. Collier J delivered her decision on 11 September 2009. In her reasons for decision, her Honour carefully considered Mr Conde’s argument and reviewed all the relevant authorities on the point. She said at [23], excluding references to authorities:
In this context, a “final order” is an order which “finally disposes of the rights of the parties.” … It is clear, however, that an order may in one sense be interlocutory but in another sense final. … There is long-standing authority that a costs order made at an interlocutory stage during proceedings is nonetheless a final order for the purposes of the Bankruptcy Act. … This will be the case only if a certificate of taxation has been issued.
A little later, her Honour said at [24]:
[T]he costs order of 14 November 2008 was a final order disposing of the liabilities of the parties, precluding any further application for costs in respect of the striking out of Mr Conde’s amended statement of claim, and was enforceable by execution. Subsequently, as is clear from the evidence, a certificate of taxation was issued in respect of the relevant costs amount.
And still further at [26] – and finally:
[T]he costs order made by Searles DCJ was clearly a final order for the purposes of s 40(1)(g). It follows that there was no error in the decision of the Federal Magistrate in respect of this finding, and accordingly there is no merit in Mr Conde’s grounds of appeal in respect of this issue.
I respectfully agree with her Honour’s conclusions. Finally, I should mention that Mr Conde sought leave to appeal Order 3 and Order 4 – the stay order – to the Queensland Court of Appeal. It appears he required leave to appeal because his appeal was more than seven months out of time. The Court of Appeal refused his application on 13 October 2009. From this history, it can be seen that Mr Conde’s argument about the finality of Order 3 has been determined against him and, with respect, properly according to the authorities on at least two previous occasions: before Wilson FM and before Collier J. He also failed in his attempt to set aside Order 3 in the application to the Queensland Court of Appeal. As his brief reasons for judgment delivered ex tempore show, Burnett FM dismissed Mr Conde’s application before him essentially because there was no basis upon which the Court ought to set aside Mr Conde’s sequestration order given that it was based upon a judgment entered which has not been set aside.
As the decisions of Collier J and Wilson FM before him show, Burnett FM was entirely correct in this conclusion. It follows that this appeal must be dismissed. I order that the appellant pay the second respondent’s costs of this appeal, to be agreed or assessed.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate:
Dated: 31 August 2010
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