Joseph Hedrlin v The Proprietors of Strata Plan No 3670
[1982] FCA 227
•27 OCTOBER 1982
And: THE PROPRIETORS OF STRATA PLAN NO. 3670
No. G71 of 1982
Bankruptcy
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J., Fisher and Fitzgerald JJ.
Bankruptcy _ Appeal _ Whether prima facie case under s.4l(7) established _ Challenge to retainer of body corporate's solicitor.Bankruptcy Act l966, s.4l(7)
Strata Titles Act, l973 (N.S.W.)
Sydney
#DATE 27:10:1982
THE COURT ORDERS THAT:-
l. The appeal be dismissed.
2. Joseph Hedrlin pay to the respondent its costs of the appeal.
Mr. Hedrlin and his wife formerly owned a home unit in a building in respect of which the body corporate is called 'The Proprietors of Strata Plan No. 3670'. He commenced proceedings against the body corporate in the Court of Petty Sessions in Sydney, claiming $l,l00 in respect of expenses and loss of income which he said he suffered by reason of the body corporate's failure to supply him with documents and information and his attempts to obtain the same, and in respect of the cost of the litigation in the Court of Petty Sessions. Dissatisfaction on his part with the course of those proceedings led him to the Supreme Court of New South Wales. He was unsuccessful there, and he was ordered to pay costs which were taxed at $l,536.60. On 20 November, l98l, the body corporate issued a bankruptcy notice in respect of the order for costs, including a small amount of interest on the amount payable.
On 4 December l98l, Mr. Hedrlin filed an affidavit which has been accepted as filed pursuant to sub-section 4l(7) of the Bankruptcy Act l966. The consequential proceedings were determined by Lockhart J. on l4 April, l982, by which time Mr. Hedrlin had filed a number of other affidavits. Lockhart J. declared that he was not satisfied that Mr. Hedrlin had a counter-claim, set-off or cross-demand equal to or exceeding the amount claimed in the bankruptcy notice which he could not have set up in the Supreme Court proceedings and ordered Mr. Hedrlin to pay the body corporate's costs of the proceedings before him, including reserved costs and the costs of earlier mentions of the matter in December l98l.
On 22 April l982, Mr. Hedrlin filed a document in the Court in the following terms:-
'Application for Leave to Appeal.
l. The applicant applies for leave to appeal from the judgment of Mr. Justice Lockhart given on l4th April l982 at Bankruptcy Court Bankruptcy District of the State of New South Wales and the Australian Capital Territory Court 20E.
2. Leave to appeal is required by Bankruptcy Act, l966.
3. The applicant desires to appeal from the whole judgment.
4. The applicant wish to rely basically with:
(a) Sec.54(l) Strata Titles Act l973 as amended.
(b) Sec. l47(l) ' ' '
(c) Rules, Supreme Court Act Pt. 8 r.l3 s.3, l, 2, 4, 5.
5. If leave to appeal or appeal granted, the applicant seek a judgment;
(a)The order made in CPS Burwood, originating this matter, against the Applicant: To be set aside;
(b)The order of Mr. Justice Hunt in this matter declare void.
(c)The order of Mr. Justice Lockhart to be dismissed.
(d)Costs to be awarded to the applicant in all the matter in relation to this particular matter.
(e)The comportement of Solicitor Hones & Ledingham to be reported to the Solicitors Statutory Comite and to the Attorney General.
(f)Recommendation of an action to be undertaken by the applicant relating to all matters as alleged in the affidavits by the applicant before the Equity Court for proceedings under the Sec.75 Supreme Court Act-Declaratory relief.
6. The grounds of the application appear in the annexed affidavit.
7. This application will be heard by the Court at ........ on........
22.4.82."
A number of further affidavits by Mr. Hedrlin have been filed in relation to that application and other applications which have been made by him or by the body corporate since the decision of Lockhart J. Mr. Hedrlin has addressed us at some length. In addition, his various affidavits set up further attempts to express his argument, and, indeed, largely concentrate on his contentions with respect to the relevant law. His subject of particular concern is the meaning and operation of the Strata Titles Act, l973 (N.S.W.). The proceedings before us have been treated as an appeal from the decision of Lockhart J.
His Honour held that his task was to determine whether a prima facie case had been established by Mr. Hedrlin in the sense in which that expression was used in this branch of the law by the High Court in Ebert's Case, l04 C.L.R. 346, and that it was not for him to determine on any final basis the rights and wrongs of Mr. Hedrlin's claim against the body corporate. His Honour went on to say that while he had not found it entirely easy to grasp every point on which Mr. Hedrlin relied, he had, he thought, grasped the essential points which he proceeded to deal with in general terms. It was not submitted before us that his Honour had not properly grasped and accurately summarised the substance of Mr. Hedrlin's claims. Having seen all Mr. Hedrlin's affidavits, including those filed since the proceedings before Lockhart J., and listened to Mr. Hedrlin as he addressed us, we can find no fault in his Honour's description and his assessment of the claims; on the contrary. His Honour went on to hold that, in respect of such claims, no prima facie case had been established. We agree. If Mr. Hedrlin has any arguable claim against the body corporate, he has not put it forward in a manner which permits it to be identified in these proceedings.
In the Supreme Court, before Lockhart J., and again before us, Mr. Hedrlin has disputed the retainer of the body corporate's solicitors and thus, he seeks inter alia to question the order for costs on which the Bankruptcy notice is founded. Insofar as any question of fact is involved in connection with the retainer of the body corporate's legal representatives, Mr. Hedrlin's case produced no more than assertions which, to say the least, were unproven and afforded no support for a challenge to the decision made by Lockhart J. on the evidence before him.
Mr. Hedrlin submitted at length that, on the proper construction of the Strata Titles Act l973 (N.S.W.), solicitors could not be appointed by a body corporate, or alternatively could not be appointed except by unanimous resolution of the proprietors. We do not propose to discuss the various provisions of the New South Wales Act. We agree with Lockhart J. that Mr. Hedrlin has so far failed to make good his attack upon the authority of the solicitors representing the body corporate to act.
We make it clear that nothing we have said affects the appellant's right to avoid the consequences of the act of bankruptcy he has committed by establishing at the hearing of any petition presented against him that he is able to pay his debts as they fall due.
No question was raised before this Court as to the competency of the present proceedings. In the circumstances, we say nothing on that matter.
In our opinion, the application of Mr. Hedrlin now before this Court should be dismissed. We have given consideration to refusing any order for costs, in view of the confused and unsatisfactory way in which the matter came before the Court. However, on reflection we have come to the view that there is insufficient reason to depart from the normal rule that costs follow the event. We will order that Mr. Hedrlin pay to the respondent its costs of the appeal.
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