Horvath, Gabor v Pattison, Paul A

FEDERAL COURT OF AUSTRALIA

BANKRUPTCY - whether bankrupt has standing to make an application in the Supreme Court of Victoria to set aside a judgment obtained against the bankrupt - whether trustee in bankruptcy has standing to make that application

Bankruptcy Act 1966 (Cth) s 178

Cummings v Claremont Petroleum NL (1995-96) 185 CLR 124 applied

GABOR HORVATH & ANOR v PAUL A PATTISON
VG 7030 of 1998

FINKELSTEIN J
MELBOURNE
21 JANUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7030 of 1998

BETWEEN:	GABOR HORVATH AGOTA HORVATH Applicants
AND:	PAUL A PATTISON Respondent
JUDGE:		FINKELSTEIN J
DATE OF ORDER:		21 JANUARY 1998
WHERE MADE:		MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed.

1. The respondent’s costs of the application be costs in the administration of the bankrupt estates of Gabor Horvath and Agota Horvath.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7030 of 1998

BETWEEN:	GABOR HORVATH AGOTA HORVATH Applicants
AND:	PAUL A PATTISON Respondent

JUDGE:	FINKELSTEIN J
DATE:	22 JANUARY 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

HIS HONOUR: Yesterday I heard and then dismissed an application by Mr and Mrs Horvath, said to be by way of appeal from a decision of their trustee in bankruptcy, for the following orders, namely:

“1.      Grant leave from our bankruptcy to the (applicants) so (we) can file a       summons in the Practice Court of Australia (sic) so (we) can read out,        implement and enforce the Supreme Court Act of 1986, Division 4,           Contract of Minors: ss  49-50-51, as it has never been done before.

2.        Grant the (applicants) use of all the necessary document needed”.

What follows are my reasons for dismissing the application.

A sequestration order was made by Merkel J against each of the estates of Mr and Mrs Horvath on 12 February 1997 upon the petition of the Commonwealth Bank of Australia.  The act of bankruptcy upon which the Bank based its petition was the failure by Mr and Mrs Horvath to comply with a bankruptcy notice that had been served on each of them.  The Bank had previously obtained a judgment in the Supreme Court of Victoria against Mr and Mrs Horvath in the sum of $338,816.93 and an application to have that judgment set aside, it having been obtained in default of appearance, was unsuccessful.  The bankruptcy notices were based on that judgment.

The action in the Supreme Court was brought to recover from Mr and Mrs Horvath a loan said to have been made to them and to their son together with interest payable on the amount of the loan.  The repayment of the loan and the interest thereon was secured by a mortgage over certain land the registered proprietors of which were Mr and Mrs Horvath and their son.  When the loan was made and the mortgage taken Mr and Mrs Horvath’s son was a minor.  Accordingly the Bank was…