Glass v Demarco

[1999] FCA 482

FEDERAL COURT OF AUSTRALIA

Glass v Demarco [1999] FCA 482

EVIDENCE – whether evidence of settlement negotiations admissible – whether exception to general rule applies – whether inference likely to be drawn which might mislead the court – whether making offer of settlement affects a right of a person

Evidence Act 1995 (Cth) s131(1), s131(2)(g), s131(2)(i)

TIBOR THOMAS GLASS v GODFREY CHARLES DEMARCO

NG 8401 OF 1998

EMMETT J
14 APRIL 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8401 OF 1998

IN THE MATTER OF GODFREY CHARLES DEMARCO
BETWEEN:	TIBOR THOMAS GLASS Petitioning Creditor
AND:	GODFREY CHARLES DEMARCO Debtor
JUDGE:	EMMETT J
DATE OF ORDER:	14 APRIL 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application by the debtor for an extension of time within which to file further affidavits and to pay money into Court be refused.

2.        The debtor pay the costs of today.

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	NG 8401 OF 1998

IN THE MATTER OF GODFREY CHARLES DEMARCO
BETWEEN:	TIBOR THOMAS GLASS Petitioning Creditor
AND:	GODFREY CHARLES DEMARCO Debtor

JUDGE:	EMMETT J
DATE:	14 APRIL 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. On 1 April 1999, I adjourned the hearing of the bankruptcy petition to 21 April 1999 at 10.15 am.  I also gave leave to the debtor to file a notice of motion returnable on 21 April 1999 before me and directed the debtor to file and serve no later than 12 April 1999 any further affidavits on which he seeks to rely on the hearing of the motion.

2. I ordered that, as a term of granting the adjournment, the sum of $50,000 be paid into court on or before 12 April 1999.  I indicated that, if that sum was not paid on or before that date, I did not propose to entertain any application to amend the notice of grounds of opposition by the debtor based on the debtor’s ability to pay his debts.  I reserved to the creditor liberty to restore the matter for mention on 14 April 1999 if the sum of $50,000 was not paid into court on or before 12 April 1999.

3. The matter has now come before me again on the application of the creditor because of the failure by the debtor to pay the sum of $50,000 into court. 

   ADMISSIBILITY OF EVIDENCE OF SETTLEMENT NEGOTIATIONS

4. On the matter being called on, counsel for the debtor sought leave to read an affidavit sworn by the debtor on 13 April 1999.  Objection was taken to paragraph 7 of the affidavit in which the debtor says that another party in an equity suit in the Supreme Court of New South Wales to which the debtor is a party made an offer of compromise which is still open to acceptance.  A copy of the offer is annexed to the affidavit.