Murdaca v Accounts Control Management Services Pty Ltd

[2008] HCATrans 101

[2008] HCATrans 101

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S240 of 2007

B e t w e e n -

ANTHONY MURDACA

Applicant

and

ACCOUNTS CONTROL MANAGEMENT SERVICES PTY LTD

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 29 FEBRUARY 2008, AT 9.28 AM 

Copyright in the High Court of Australia

GUMMOW J:   On 29 July 2005 the respondent obtained a judgment against the applicant in the Local Court of New South Wales for $13,255.45.  On 7 September 2006 that Court ordered that the judgment debt be paid by weekly instalments.  On 29 September 2006 a sequestration order was made against the estate of the applicant on the respondent's petition.  McInnis FM dismissed an application to review the making of that order on 9 November 2006.

The applicant's appeal to the Federal Court was dismissed by Stone J on 30 April 2007.  Her Honour held that the applicant had not challenged whether the documentary material before the Local Court evidenced an assignment of the agreement for loan by the lender to the respondent.  The applicant was held to his implicit admission, on appeal, and he did not raise the issue before McInnis FM.  It was therefore inappropriate for the Federal Court to conduct a hearing on that matter.  Her Honour further held that the instalment order did not establish the applicant's solvency.  It was no more than a rebuttable presumption.  There was no basis upon which McInnis FM could have been satisfied as to the applicant's solvency.  Her Honour rejected the applicant's application to rely upon fresh evidence on that issue.

The applicant has not advanced any questions of law which would justify a grant of special leave to appeal.  Any question concerning the effectiveness of the assignment lacks a sufficient factual foundation to allow it to be advanced.  No error is disclosed in relation to proof of insolvency and her Honour's rejection of further evidence followed settled principles.  The applicant's further grounds are unparticularised and do not advance his case.  Special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.  I publish the disposition signed by Kiefel J and myself.

AT 9.31 AM THE MATTER WAS CONCLUDED