Horvath v Pattison

[1999] FCA 1388

FEDERAL COURT OF AUSTRALIA

Horvath v Pattison [1999] FCA 1388

GABOR HORVATH & AGOTA HORVATH -v- PAUL A PATTISON (Trustee)
and COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

V 520 of 1999

GABOR HORVATH -v- PAUL A PATTISON; MALCOLM HOWELL; GARRY JOHN BUTCHER; JOHN DOHERTY; ROSS CULLEN THOMSON and SAM BARBAGALLO

V 531 of 1999

RYAN J
30 SEPTEMBER 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 520  OF 1999

BETWEEN:

GABOR HORVATH
First Applicant

AGOTA HORVATH
Second Applicant

AND:

PAUL A PATTISON (Trustee)
First Respondent

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
Second Respondent

AND BETWEEN:

V 531 of 1999

GABOR HORVATH
Applicant

AND:

PAUL A PATTISON; MALCOLM HOWELL; GARRY JOHN BUTCHER; JOHN DOHERTY; ROSS CULLEN THOMSON and SAM BARBAGALLO
Respondents

JUDGE:

RYAN J

DATE OF ORDER:

30 SEPTEMBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The application in V 520 of 1999 is refused.

2.        The application in V 531 of 1999 is refused.

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	V 520  OF 1999

BETWEEN:

GABOR HORVATH
First Applicant

AGOTA HORVATH
Second Applicant

AND:

PAUL A PATTISON (Trustee)
First Respondent

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
Second Respondent

AND BETWEEN:

V 531 of 1999

GABOR HORVATH
Applicant

AND:

PAUL A PATTISON; MALCOLM HOWELL; GARRY JOHN BUTCHER; JOHN DOHERTY; ROSS CULLEN THOMSON and SAM BARBAGALLO
Respondents

JUDGE:	RYAN J
DATE:	30 SEPTEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There are before the Court two applications by Gabor Horvath for leave to institute proceedings.  That leave is necessary because, on 27 April 1999, Weinberg J made orders, amongst others, that:

   "Mr Gabor Horvath Senior and Mrs Agota Horvath shall not, without the leave of the Court, institute in this Court any proceedings against Mr Paul A. Pattison, their trustee in bankruptcy, or against the Commonwealth Bank of Australia, other than an appeal against this order."

2. By his first application in VG 520 of 1999 Mr Horvath senior applies for leave to seek, pursuant to s 99(1) of the Bankruptcy Act 1966, that a proof of debt filed on behalf of the Commonwealth Bank of Australia ("the Bank"), in the administration of the bankrupt estates of himself and his wife, Agota Horvath, be expunged.

3. The basis of that application is said to be the infancy of the applicant's son, Gabor Horvath, junior, who was a party to the loan agreement as a result of which the Bank became a secured creditor of the applicant, his wife and son. The defence of infancy afforded by ss 49 et seq. of the Victorian Supreme Court Act 1986 was upheld by Beach J in the Supreme Court of Victoria, but his Honour made it clear that the defence did not avail the applicant or Mrs Horvath.  Beach J said at p 7 of his reasons for judgment:

   "In my opinion, the Master was quite correct to set aside the judgment entered against the third named defendant [Mr Horvath junior].  However, I can find no basis for staying execution of the orders made against the first and second named defendants.  Whilst the loan and mortgage may be void as against the third named defendant, they are binding on the first and second-named defendants."

4. Accordingly, his Honour set aside the judgment which had been entered in default of appearance against Mr Horvath junior on 20 January 1995, but did not interfere with the judgment similarly entered against the applicant, Mr Horvath senior, and his wife on 24 February 1995.  The applicant sought to raise the same issue in an application before Northrop J in this Court to set aside the bankruptcy notice which had been the foundation of the sequestration order later made against him and his wife.

5. The making of the sequestration order was resisted before Merkel J on substantially the same ground, amongst others, but was rejected.  That rejection was confirmed by a Full Court of this Court on 4 June 1997.  In these circumstances I am not persuaded that the application for expungement raises any new issue which has not been finally determined against the applicant, both in this Court and the Supreme Court.  Accordingly, the application in VG 520 of 1999 is refused. 

6. By a second application, VG 531 of 1999, the applicant similarly seeks leave to bring proceedings pursuant to Order 49 of the Rules of this Court for offences against s 263A of the Bankruptcy Act allegedly committed by Ross Cullen Thompson, Sam Barbagallo, John Doherty and Malcolm Howell.  With the exception of Mr Doherty, the prospective defendants were all officers of the Bank who swore affidavits of debt and the like in support of the Bank's creditor's petition.  Mr Doherty is another officer of the Bank who signed the proof of debt which the applicant sought leave in VG 520 of 1999 to have expunged.  Any offence against the Bankruptcy Act 1966 conceivably committed by Mr Doherty would have been against s 263B rather than s 263A.

7. The applicant also seeks leave in VG 531 of 1999 to bring proceedings against his trustee in bankruptcy, Mr Pattison, and Mr Pattison's assistant, Mr Howell, for an offence against s 263 in that they have allegedly acted fraudulently in admitting the Bank's proof of debt.  I consider that s 263, which is concerned with fraudulent concealment of property, does not provide an appropriate basis on which to charge either Mr Pattison or Mr Howell with an offence against the Act.  However, a more fundamental impediment exists to the making out of any of the offences contemplated by the applicant in VG 531 of 1999.  That is that each of the draft summonses by way of proceedings for an offence contains an identical statement of particulars which begins, "You are charged for challenging the virtue of sections 49, 50 and 51 mortgage of the Supreme Court Act Victoria." Then follows a note by way of explanation or amplification of ss 49, 50 and 51 which is apparently derived from some practice book annotating the Supreme Court Act 1986 of the State of Victoria. For the reasons explained in relation to application VG 520 of 1999, the applicant has misconceived the availability to him and his wife of a defence under ss 49, 50 or 51 of the Supreme Court Act 1986.

8. Accordingly, I consider that the applicant cannot make out the commission of an offence by any of the proposed defendants against s 263A or s 263B of the Bankruptcy Act 1966.  For these reasons the application VG 531 of 1999 is also refused. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RYAN.

Associate:

Dated:             30 September 1999

The applicant appeared on his own behalf.
There was no appearance on behalf of the respondents.
Date of Hearing:	30 September 1999.
Date of Judgment:	30 September 1999.