Heinrich v Commonwealth Bank of Australia

[2001] FCA 661

FEDERAL COURT OF AUSTRALIA

Heinrich v Commonwealth Bank of Australia [2001] FCA 661

Bankruptcy Act 1966 (Cth) s 86

Gye v McIntyre (1991) 171 CLR 609, distinguished

STEPHEN GLENN HEINRICH v COMMONWEALTH BANK OF AUSTRALIA
S 106 of 2000

HEEREY, BRANSON and LINDGREN JJ
ADELAIDE

28 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 106 of 2000

BETWEEN:	STEPHEN GLENN HEINRICH APPELLANT
AND:	COMMONWEALTH BANK OF AUSTRALIA RESPONDENT
JUDGES:	HEEREY, BRANSON and LINDGREN JJ
DATE OF ORDER:	28 MAY 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the costs of the respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 106 of 2000

BETWEEN:	STEPHEN GLENN HEINRICH APPELLANT
AND:	COMMONWEALTH BANK OF AUSTRALIA RESPONDENT

JUDGES:	HEEREY, BRANSON and LINDGREN JJ
DATE:	28 MAY 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

HEEREY J:

1. I invite Branson J to deliver the first judgment.

   BRANSON J:

2. On 6 September 2000 a judge of the court (Mansfield J) ordered that a sequestration order be made against the estate of the appellant, Stephen Glenn Heinrich.  A registered trustee, Alan Geoffrey Scott, was appointed as trustee of Mr Heinrich’s estate.

3. By a notice of appeal dated 27 September 2000 Mr Heinrich purported to appeal from the judgment of Mansfield J.  The grounds of the appeal set out in the notice are as follows:

   “The Federal Court of Australia Act section 5(2) states; The court is a superior court of record and is a court of law and equity.

   1.Justice Mansfield;

   a)denied in law and equity the right to an account of all mutual dealings between the parties before a sequestration order is made;

   b)relied on a judgment debt obtained from [a] court below that was misled by fabricated evidence given by the bank;

   c)relied on shadow accounts that the court below was misled into believing were correct;

   ignored the evidence before him given from the senate inquiry transcript 16 August 2000 that prove the shadow accounts are incorrect;

   d)failed to order production of the bank statements for the true accounts of the banks general ledger;

   e)used evidence not before him to add weight to his decision;

   f)made a decision contrary to the evidence before him;

   g)he erred in fact in that the respondent has never denied the allegation that the mortgage number 7051412 was taken by Saunders without the consent of the appellant;

   h)failed to weigh the misrepresentations of Saunders for the rate and fixing of interest to the Machinery Loan and Farm Loan; and

   i)the only security given (the Aldgate property) was material to the transfer of Heinrich’s business.”

4. There were certain additional grounds set out in the notice which may or may not have been intended to expand on the above grounds.  It is possible that they were intended to…