Hedrlin, Joseph v The Proprietors of Strata Plan No. 3670

[1983] FCA 287

I N TIIE FEDERAL COURT ) )

O F AUSTRFLLIA	)
1
NEW SOUTH WALES	1
1 l

DISTRICT	REGISTRY	1
1

GENERAL DIVISION ) N o . G137 of 1 9 6 3

BETWEEN	JOSEPH	HEDRLIN
A p p l i c a n t
__	AND	THE PROPRIETORS OF STRATA PLAN
No. 3 6 7 0
R e s p o n d e n t
BETWEEN	JOSEPH HED-WIN A p p l i c a n t
_.	AND	TIIE PROPRIETORS - STW,TA PLAN
No. 3 6 7 0
F i r s t R e s p o n d e n t
__	AND	MAX CHRISTOPHER DONNELLY
Second R e s p o n d e n t

ORDERS

Judge maklng orders: B c a u m o n t , J.

D a t e orders made:	27 September, 1983.
Where made:	Sydney.

- 2 -

THE COURT ORDERS THAT:

In matter No. W448 of 1983:

1. The appllcatlon disnussed. be

2. The applicant pay the costs of the flrst respondent

including reserved costs.

3. The a2pllcant pay the costs of the second respondent

on a submitting basis.

In matter No. G137 of 1983:

1. The application dlsmlssed. be

2. The applicant pay the costs of the respondents includlng

reserved costs.

i

i

I

i

i

!

I N THE F E D E P X COURT 1 1

OF AUSTRALIA	1 1
NEW SOUTH WALES	1 1

DISTRICT	REGISTRY	)
1

GENERAL DIVISiON 1 N o . G . 1 3 7 of 1983

BETWEEN JOSEPH HEDRLIN

A p p l l c a n t

_.	AND	TIIE PROPRIETORS OF STRATA PLAN
No. 3 6 7 0
Respondent

!

N o . V7. 4 4 8 of 1983

BETWEEN	JOSEPIl H DiUIN A p p l l c a n t
-	AND	TIIE PROPRIETORS - STR4TA PLAN
NO. 3 6 7 0
First R e s p o n d e n t
AND -	mu[ CHRISTOPHZR DONNELLY
Second R e s p o n d e n t

CORAM: B e a u m o n t , J.

DATED : 27 Septembsr, 1983.

- 2 -

REASONS FOR JUDGNENT

I wlll deal flrst wlth matter No. W 4 4 8 of 1 9 8 3 .

There are two applicatlons before the Court. The flrst is an

appllcation to stay proceedlngs under the sequestratlon

order; the second is an application to annul the bankruptcy.

The first appllcatlon 1s an lnterlm applicatlon and is lncldental

to the second application.

On 2 9 August, 1 9 8 3 I reEused a simllar application for

annulment for the reasons I then gave. On thls occasion the

applicant has covered much of the ground ralsed in the earlier

application. Even if the matter were not res judlcata, I see

no reason for changmg the views I then expressed. However, the

applicant, who still appears in person, has raised a number of

fresh matters as follows:

1. The €act that appllcatlon has been made to the Court

of Appeal of the Supreme Court of New South Wales seeking leave

to appeal agalnst a decision of a single ~udge of that Court,

such application to be heard on 7 November, 1 9 8 3 .

2. The decision o€ Needham, J. in the matter Proprletors

of Strata Plan No. 6522 v. rurney ( 1 9 7 6 ) 1 NSWLR 412.

3 . The provislons of the Anti-Discrlminatlon Act, - 1 9 7 7

( N . S . W . ) (see Viskuskas v. Nlland ( 1 9 8 3 ) 47 KZR 3 2 ) -

- 3 -

4. Sectlon 35 of the Bankruptcy Act, 1966: m this

connection, the applicant seeks a transfer of the bankruptcy

proceedings to the Supreme Court of X'ew South Wales.

In my opinion, Eone of these matters are relevant to

this appllcation, which is confined to the 3urlsdiction granted

by s.154 of the Bankruptcy Act, 1966. As a further ground,

the applicant asserts that he is able, although unwilling, to

pay his debts. Presumably the appllcant has m mind the decision

of the Full Court of this Court ln R e Sarina (1980) 32 ALR 596.

Thls ground could conceivably be made out if evldence to support

It were available. However, no evidence, as distinct from

assertion, of the applicant's financial position was adduced.

It follows that, again, the appllcation must be

dlsrnissed. Again, I order that the appllcant pay the costs of

the first respondent, lncludmg reserved costs, and I further

order that the applicant pay the costs of the second respondent

on a submitting bas ls .

I turn now to the other appllcation and that is in

matter No. G. 137 of 1983. In paragraph 2 of his notice of

motion the applicant seeks an order for the renoval of the

trustee of his estate. The applicant appears in person and argued this matter at the same time as two related applications

(see above) .

Originally, this application was to be heard on

4 October, 1983, but by consent this fixture was vacated and

- 4 -

the appllcatlon was argued today. The ?.P?llCant tendered no

evldence ln the appllcatlon but made	a number of assertions. He
referred to:

(1)	alleged blas on the part of the trustee;
(2 )	the statutory consent glven by ths trustee to
act;
( 3 )	an alleged private agreement bet%een the trustee,
the respondent and its solicitor;
( 4 )	section 165 of the Act;
( 5 )	section 19(1) (c) and (g) of the A c t ;
( 6 )	the circumstances surrounding the joinder of
the trustee as a respondent to the appeal against
the judgment and orders of Evatt, J. made on
24 May, 1983 in whlch the applicant was made bankrupt.
In my oplnlon, few only of the foregoiny matters bear

upon the Issue of the Eitness of the trustee to act, but, in

any event, there is no material before the Court sufflcient to

warrant the nakmq of any finding of blas or nlsconduct on the

part of the trustee, nor, in my view, has any case been mede out

which would justify an inference of apprehenslon on the part of

the applicant that on any reasonable basls he should fear tinat

there will be blas	or misconduct in the fucure on the part	of
the trustee.

It follows, in my n e w , that the applicatlon for removal

should be dismissed and the appllcant must pay the costs	of the
respondents, including any reserved costs.

I certify that W ttie F preceding

,>ages are a true copy of the reasons for

iubgment herein of The lianourable