Hedrlin, Joseph v The Proprietors Strata Plan No 3670

[1983] FCA 250

IN THE FEDERAL COURT OF AUSTFUJLIA	)	!
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GENERAL DIVISION BANKRUPTCY DISTRICT	)
)

OF THE STATE OF NEW SOUTH MALES AND	)
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AUSTRALIAN CAPITAL TERRITORY	1 No. W448 of 1983

BETWEEN	JOSEPH HEDRLIN Appllcant
._	AND	"THE PROPRIETORS - STRATA
PLhV NO. 3670"
Flrst Respondent
MAX CHRISTOPHER DONNELLY
Second Respondent

ORDERS

Judge making order: Beaumont , J.

Date order made: 29 August, 1983

Sydney.	made:	Where THE COURT ORDERS THAT:
1. The appllcation be dlsmlssed.
2. The appllcant pay the costs of the flrst respondent
includlng reserved costs.
3. The appllcant pay the costs of the second respondent
on a submltting basis.
4. Dlrect that the appllcatlon to remove the trustee
be flxed for hearing on Tuesday, 4 October, 1983 at
2.15 p.m.

IN THE FEDERAL COURT OF AUSTRALIA	)
)

GENERAL DIVISION BANKRUPTCY DISTRICT	)
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OF THE STATE OF NEXV SOUTH WALES AND )

)

AUSTRALIAN CAPITAL TERRITORY 1 No. W448 of 1983

BETWEEN JOSEPH HEDRLIN

Applicant

"THE PROPRIETORS - STRATA

PLAN NO. 3670"

Flrst Respondent

MAX CHRISTOPHER DONNELLY

Second Respondent

CORAM: Beaumont, J.

DATED :	29 August, 1983
(ex tempore)

REASONS FOR JUDGMENT

In thls mazter, by appllcaclon dated 15 July, 1983

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the appllcant seeks orders In these terms:

"1.	That the bankruptcy be annulled that the sequestratlon order ought not to have been made provldlng Sec.154 Bankruptcy Act 1966
as amended (sic) .
2 .	The operation of the sequestraclon order be suspended.
3.	Declare no ~urisdlction of the Court In
Bankruptcy, in relation to the matters of
defence of the bankrupt, being jurisdiction
of the State New South Wales.
4 .	Tiie-court resolve the orders of costs, already made in this matter and thus occurrlng now Sec. 300 Bankruptcy Act."

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It would appear that the appllcatlon	is brought pur-	I
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suant to s.154(1) of the Bankruptcy Act, 1966. The applic-	I
ation is supported by an affldavlt sworn by the appllcant

on 15 July, 1983. In vlew of the difflcultles whlch I have

had in perceiving the real basls of the appllcatlon now made,

I think it 1s proper that I should set thls affidavlt out	In
full and I now do this as follows:

“1.	I’m the Appllcant for the applicatlon to the
court dated 15 July, 1983.

2.

I rely to the McDonald, Australlan Bankrupccy Cases 1983, Published February 1983 Page 48 & 47 (119) Powers of the court, Re Lloyd; Ex p.Lloyd (1889)

6 Mor.297; Re Parker & Bulteel; Ex p.Deare

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(1917) H.B.R.230, at p.235 (delay) Re Lloyd;

Ex p.Lloyd, supra. To Re Prowse;	Ex p.Debtor
(1981) 39 A.L.R. 639.

3. Slnce thls bankruptcy proceedlngs has taken place, by Bankruptcy Notlce, the Court in Bankruptcy has proceeded pursuant Bankruptcy Act 1966 as amended.

4 .	The questlon of ~urlsdlctlon was not risen by the
partles. The Court Itself dld not undertaken any
declsion in relatlon to matters of other ~urlsdictlon

the New South Wales State.

5 .	The questlon of the matters as rlsen at all tlmes
related to this actlon of bankruptcy, are to be
decided by the ~urlsdlctlon of the Supreme Court

of New South wales and the Attorney General, provldlng,

that even thls Action as undertaken by the sollcitor,

G. Bush In flrst degree 1 s subject to obtaln leave

to undertake agalnst sollcitor and Offlclal Trustee.

6 . I have undertaken an Actlon au pres the Attorney

General New South Wales on the 30 June 1983, vexatlous

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litigeant Sec.84 Supreme Court Act 1970 as amended

agalnst the Sollcitors Hones & Ledingham, N.D.

Ledingham and G.M. Bush. In the allegations I have

also lnforined the Attorney General about the as I

believe Unlawful1 Action in thls bankruptcy by them.

I mentlon Crlmes Act 1900 as amended Sec.181 False

Pretence of tlcle Fraudulent personation and

breaches of the Legal Practicloneers Act. The

Strata Tltles Act 1973 as the Real Property Act

1900 incluslve. The Actlon as I belleve wlll be

successful, thls proceedlngs In Bankruptcy 1s the

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prove, where thir action, how far has gone.

In any case, $1.7000 can be recovered in State

Jurisdlction, beyond doubt.

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7 . Under the same applicatlon as mentioned in above Par.6 I have applled also against the Official Trustee, his solicltor and barrister, all being

also under Duties Providing the Bankruptcy Act

1966 Sec.l9(1) (1) to know the cause of the

Bankruptcy. He know lt, he has Joined as second

respondent. All this above persons Actions against

them, even in Bankruptcy Act are subject to Leave

from the Attorney General N.S.W. Applicatlon made

on the 12th July 1983 and handled at the office of

Attorney General the same date. I belleve that the

Attorney General himself wlll undertake or order to

be undertaken the Action, by the Crown, because

the offences are as alledged agalnst the Crown

and Crown Land. (Under perpetual lease)

8. I belleve that all above polnts as risen, Inter-alia

provide, that ln~ustice will be done, if I will

remain Bankrupt providing the Jurisdiction of the Bankruptcy Act 1966 and In other slde providing the

Jurisdictlon of the state that I clalm to be applied,

I'm an innocent victim of wrong, ranging to several

Criminal offences as I believe done by this

solicitors, barrister and finally by the Offlclal

Trustee. After all, ignorance 1 s no excuse aply

twice to suposed to be Lawyers. "

It is apparent from the terms of the affidavit that the

applicant is confused in his understandlng of the legal issues

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involved. To be fair to hlm, he may have language difflcultles

and, of course, he does not, so far as I am aware, hold any legal

quallflcatlon. One lmmedlate example of the confusion in the

affldavlt may be seen ln paragraph 2 which contains a reference

to a bankruptcy text and to some notes in the text. Those

notes, however, appear to be made with reference to s .37 of the

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Act whlch can have no appllcatlon ln the present case.

The matter does have some background to which reference

should be made. It 1 s apparent from a perusal of the affldavlt

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and from the submissions made to me in the applicatlon that

the matters that the appllcant now seeks to advance have al- I

ready been agltated at some length and In some detall before

two single Judges and two Full Courts of thls Court. It is

sufflclent If I merely refer to the declsion of Lockhart, J.

In the application made by the applicant under s.41(7) of

the Act (given on 1 4 Aprll, 1 9 8 2 ) and the unsuccessful appeal

from that declsion to the Full Court of this Court (given on

27 October, 1 9 8 2 ) and to the declslon of Evatt, J. (glven on

24 May, 1 9 8 3 ) in maklng the sequestratlon order hereln and the

unsuccessful appeal from that order to another Full Court

(glven on 2 9 June, 1 9 8 3 ) .

As has been sald, It is by no means easy to perceive

the grounds, lf any, upon which the appllcant then sought and

now seeks to rely In support of the contentlon that he 1 s

under no llablllty to the first respondent. In my oplnlon, no

reason has been demonstrated to me to ~ustlfy a finding of

even a prima facie case that the power conferred by s.154

should be lnvoked here. Under that provision, the court may make

an order annulling the bankruptcy where r;h court 1 s satlsfled

elther (a) that a sequestratlon order ought not to have been

made or (b) that the unsecured debts of the bankrupt being

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debts that had been proved in the bankruptcy have been pald

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in full or that the bankrupt has obtained a legal acqulttance

of them.

It may 'be that there 1s an lssueestoppel on the polnts now

sought to be ralsed by the appllcant but even lf this were not ..

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so, it seems to me that the reasonlng of Lockhart, J. and of

Evatt, J. and of the two Full Courts of thls Court to which I

have referred more than amply demonstrate the absence of any

case whatever to challenge the maklng of the sequestration

order. As a necessary consequence, these reasons demonscrate

why any application under s.154 should also fall.

It is true that, before me, the appllcant referred also to

the provisions of s.234(1) of the Crown Lands Consolldatlon Act

(N.S.W.). But in my oplnlon the provislons of that Ac , In-

cludlng the provlsions of s.234(1) can have no bearing upon the

point now sought o be made by the appllcant.

In my opinlon, the applicatlon under s.154 should be

dismissed and I therefore refuse to make the order numbered	1
sought m the applicatlon.

In paragraph 3 of the appllcatlon now before me the

applicant also seeks a declaratlon that there is no ~urlsdlctlon

in the Court of Bankruptcy In relatlon to matters of defence of

the bankrupt, being the Iurlsdlctlon of the State of New South

Wales. Although framed as a separate claim for rellef, thls

claim is really part of the prlncipal clalm for rellef under

s.154(1). In other words, I do not understand that the appllc- ant relies upon thls claim to ]ustlfy any lndependent rellef,

but rather seeks to use It as a reason why an order should be

made under s.154 (1).

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I have great difficulty in understanding the basis

upon whlch the clalm 1 s advanced. It 1s apparently a refer-

ence to the circumstance that the defence sought to be ralsed

by the appllcant in the proceedlngs upon whlch the claim

founding the bankruptcy notice was based was in some way

related to the provlsions of a New South Wales statute, namely,

the Strata Tltles Act. But, glven thls clrcumszance, It 1 s by

no means apparent o me how thls of ltself could afford any

reason for exercising my discretion under s . 1 5 4 in favour of

the appllcant. Of course, the court In the exerclse of its

jurisdlctlon under the Bankruptcy Act takes notice of, and,

where appropriate, glves effect to the laws of the states:

see The Constltutlon, s.118. But it does not follow that any

State law operates to deprive thls court of Its ~urisdiction

in bankruptcy: see the Bankruptcy Act, s.27. Indeed, the

appllcant can point to no State law whlch purports to do so.

I therefore refuse to make the declaratlon sought in paragraph

3 of the application.

In paragraph 2 of the application, a suspension of the

sequestration order was sought. It would appear that thls

appllcation was made in ald of the claim for prlnclpal rellef

in thls application under s . 1 5 4 . In vlew of my decislon In

refusmg the principal claim for relief, lt 1s not of course

appropriate that I grant any suspenslon of the sequestratlon

order.

I make the followmg orders:

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1. That the applzcatzon be dismissed.

2. That t h e a p p l x a n t pay the costs of the first respondent

zncludzng reserved costs.

3. That the applzcant pay the costs of the second respondent

on a submitting basls.

4. Direct khat the application to remove the trustee be

fzxed f o r hearing on Tuesday, 4 October, 1983 at 2.15 p.m.

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