Mathews v Beneficial Leasing Pty Ltd

[1990] FCA 683

68 3 /.96

JUDGMENT NO .......-"........ -

B THE FEDERAL COURT OF A U S T U )

DIVISIW 1

-PTCY	QJSTRICT OF THE	) PP1373 of 1990
1

RE :  FUSSELL GORDON HAIG

(Debtor)

EX PARTE:	BENEFICIAL LEASING PTY.
m

(Creditor)

MINUTES OF ORDER

JUDCF MAKING O R D U I PINCUS J.

R	-	1	22 NOVEMBER 1990
JmBLuml	BRISBANE

THE COURT ORDERS THAT:

1.    The creditor's petition be amended by deleting the worde and figures "15th day of June 1989" where they appear, and replacing them by the words and figures "14th day of July 1989".

2 .     Re-verification and re-service be dispensed with.

3 .    A sequestration order be made in respect of the estate of the debtor.

4.    The petitioning creditor's costs of and incidental to the proceedings be taxed and paid in accordance

with the Bankru~tcv Act.

Settlement and entry of orders dea

124 of the Bankruptcy Rules.

m THE FEDERAL COURT OF AUSTRAtIA )

DIVISION 1

RE 8 RUSSELL GORDON HAIG MATHEWS (Debtor)

EX PARTE: BENEFICIAL LEASING PTY. LTD. (Creditor)

-8	PINCUS J.
-8	BRISBANE

W: 22 NOVEMBER 1990

EX TEMPORE REASONS FOR JUDGMENT

This is a petition for a sequestration order, and

Mr. Mathews, the judgment debtor, has appeared, and he has

explained his position, if I may say so, in a way which makes it quite clear. He has been sued in Melbourne for what is alleged to be a debt, and judgment was obtained in default of defence .

Subsequently, Mr. Mathews made attempts to apply to And he says in effect that I should not make him bankrupt, but	set the judgment aside; so far they have been unsuccessful.
what I should do is to wait and see what happens in Melbourne.
The criticism which is made of this on the part of the creditor, represented by Mr. Kimmins, is two-fold. First of all Mr. Kimmins says, accurately, that Mr. Mathews wrote to Beneficial Finance, the creditor, a letter reading as followa:

"We agreed to repay the lease outstanding of
$3936.16 in 6-monthly instalments, provided the
figure of $3936.16 has been calculated
correctly. Please forward a copy of the
detailed calculations undertaken to determine
that amount. Our cheque for $656.02 is
enclosed".

Mr. Kimmins' second point relates to the details of the application to set the judgment aside. As to the first point, I agree with the suggestion which was made by Mr. Kimmins that the letter implies an obligation acknowledged. It is true, as Mr. Mathews has pointed out, that the obligation was conditional upon the sum being calculated correctly. But there really is not anything placed before me to suggest that it is not.

Mr. Mathews, in effect, in connection with this, makes the complaint which seems to me to have substance: that living in a country like Australia, it is fairly difficult if you are in Queensland and the subject of Melbourne proceedings to defend, particularly in relation to relatively small sums,

however, does not have jurisdiction to rehear all the cases	and particularly when you have not got any money. This Court,
which are heard all over Australia on that ground.
The second point which Mr. Kimmins makes in answer to Mr. Mathews' application to go behind the judgment is that
he says that the application proposed to be made, and apparently not yet effectively made, to the Magistrate's Court is rather vague. I agree with that. It seems to me that if
one looks at the application to have judgment set aside, copy of which is filed on 16 October 1990, it is not of a kind which the other side could really respond to in any sensible way. For example it says the defendant, per one R. Zoc, made statements to Russell Mathews of abusive, coercive, harassing and unconscionable nature in breach of s.52A and 6.60 of the
uade Practices Act 1974. The next paragraph saysr

"We are unaware of the alleged agreement of on
or about 24 August 1988 and wish a copy of the

same" .

These matters are largely, I think, a matter of
impression, but the law is clear that this Court does not

routinely go behind default judgments and retry them, which eeema to be a constant plea. If we were doing that whenever asked, then we would be doing little else. There must be a special case put forward, a case which makes one entertain some doubt about the proposition that the judgment debt is truly due.

It is also necessary to deal with matters which have been diecussed by Mr. Kimmins concerning the form of the papers. It is true, as is stated in the Registrar's certificate, that there is a defect in the heading and also true, as Mr. Kinunins submitted, that under 6.306 of the Bankru~tcv Act 1966 that cannot invalidate the proceedings. The petition incorrectly states the date of the judgment, and in my opinion this Court has jurisdiction to and should amend that defect.

The order will be that the petition be amended by deleting the words and figures "15th day of June 1989" where they appear, and replacing them by the words and figures "14th day of July 1989". I dispense with re-verification and re- service.

I find the act of bankruptcy alleged in the petition as so amended. I make the other findings which are necessary to found a sequestration order. I make a sequestration order in respect of the estate of the debtor and order that the petitioning creditor's costs of and incidental to the proceedings be taxed and paid in accordance with the

tcv Act.

I certify that this and the

three preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

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Associfte

Date 22 /Vovc&r /770