Olivieri v Australia and New Zealand Bank Group Limited
[2014] FCCA 196
•3 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OLIVIERI v AUSTRALIA AND NEW ZEALAND BANK GROUP LIMITED | [2014] FCCA 196 |
| Catchwords: BANKRUPTCY – Application for review of Registrar’s decision not to grant an adjournment and to make a sequestration order – where related appeal proceedings before Supreme Court of New South Wales – where appeal not related to applicant’s obligations – whether to grant an adjournment – application dismissed. |
| Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137 Mio Amico Pty Ltd v Australian and New Zealand Banking Group [2013] NSWCA 353 |
| Applicant: | OLLIE ITALIANO OLIVIERI |
| Respondent: | AUSTRALIA AND NEW ZEALAND BANK GROUP LIMITED |
| File Number: | SYG 1951 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 3 February 2014 |
| Date of Last Submission: | 3 February 2014 |
| Delivered at: | Sydney |
| Delivered on: | 3 February 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Oliveri Lawyers |
| Solicitors for the Respondent: | Norton Rose Fulbright Australia |
ORDERS
Application for review of Registrar’s decision dismissed.
Applicant to pay the respondent’s costs, such costs to be paid in the same priority as the respondent’s costs as applicant for the sequestration order.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1951 of 2013
| OLLIE ITALIANO OLIVIERI |
Applicant
And
| AUSTRALIA AND NEW ZEALAND BANK GROUP LIMITED |
Respondent
REASONS FOR JUDGMENT
There comes before me today an application to review a decision of Registrar Tesoriero who made a sequestration order against the applicant, Mr Ollie Italiano Olivieri, on 19 December 2013. The sequestration order was made on the petition of the ANZ bank. It is owed almost $3.3 million. It obtained a judgment on 4 June 2013 after a hearing before Davies J, and what has occurred since that time is that applications have been made firstly for a stay of his Honour’s judgment and then for appeals against it. These applications have gone side by side with procedures in this court leading to the bankruptcy of Mr Olivieri. Those proceedings in this court were adjourned on four occasions before a final hearing on 19 December 2013 when a further application for adjournment was made and refused by the Registrar.
In regard to the proceedings in the Supreme Court of New South Wales, it appears that a notice of appeal was originally filed but that, after that occurred, Mr Olivieri suffered a medical condition which made it exceedingly difficult for his lawyers to obtain proper instructions. However, they eventually did so and an amended notice of appeal was filed, which is now travelling together with an application for a stay of the judgment. Both of those applications were meant to be heard today in the Supreme Court but have been put over until next week, given the application before me.
It is fair to say that normally a court is sympathetic to the grant of adjournments of a creditor’s position where there is an appeal on foot against the judgment upon which the position is based: Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137. This is the usual case where the appeal itself is an appeal as of right and is what one would call the “first appeal”. However, in this particular case, that is not quite the position. The appeal adumbrated in the amended notice of appeal is not an appeal against his Honour’s decision in respect of the obligations of the applicant, but an appeal against the manner in which his Honour exercised his discretion not to grant an adjournment. That was an interlocutory decision, and the notice of appeal should indicate that it is an appeal from which leave is required, although under the details of the appeal it says:
“2. This notice of appeal is not filed pursuant to leave to appeal.”
There is nothing in the appeal document which would provide me with any assistance as to why his Honour’s discretion had not been exercised judicially and there is certainly nothing in the documents which indicate to me the applicant’s argument as to why he does not owe the money to the bank. The applicant is the guarantor of the debt of a company, presumably controlled by him, known as Mio Amico Pty Limited, and that company was the principal obligor under the agreement.
When I have regard to the chronology provided by the applicant debtor, it seems to me that he has had more than a reasonable amount of time in which to put his house in order before Registrar Tesoriero came to the final decision that he did on 19 December 2013. There is in the file an affidavit sworn by Angelos Nick Mathas dated 6 December 2013 which annexes a judgment of Gleeson JA in the Court of Appeal: Mio Amico Pty Ltd v Australian and New Zealand Banking Group [2013] NSWCA 353. His Honour notes at [13] in refusing a stay of the judgment that:
“It will be observed that the grounds of appeal do not assert any error of the kind referred to in House v The King (1936) 55 CLR 499 at 504-5 in relation to the exercise of discretion by Davies J to refuse the adjournment application. In oral argument, counsel for the applicants confirmed that no such error is alleged.”
His Honour gives some serious consideration to the decision of Davies J, admittedly on the basis of a claim of apprehended or actual bias by his Honour. That is a claim which has now been withdrawn. But in my view, his Honour’s judgment is useful in considering the possible success or failure of the application as now made. So far as I can see, Gleeson JA makes no criticism of the decision of his Honour not to grant the adjournment, and there is nothing before me which would indicate that I would be able to make the difficult finding that the discretion of a judge of the Supreme Court of this state may have miscarried. In those circumstances, I do not believe that it would be appropriate to review the decision of Registrar Tesoriero not to grant an adjournment or the learned Registrar’s decision to make a sequestration order against the estate of Mr Olivieri. This Court looks at the matter de novo, but in my view, nothing has changed since 19 December 2013.
I am also aware that although the principal debtor, the company, is the subject of proceedings for its winding up, no winding up order has yet been made and one is proposed to be applied for on 10 February 2014. If there are any grounds for appealing the orders of Davies J, then these can be articulated by the company just as well as by Mr Olivieri. Mr Muir, who appears on his behalf, has told me that there is no ground of appeal that relates solely to Mr Olivieri’s position as a guarantor. If a serious argument can be articulated, then I have little doubt that the Associate Justice who will be hearing the winding up application will grant an adjournment so that the Court of Appeal hearing can proceed.
The orders the court shall make are to dismiss the application for review and order that the applicant pay the respondent’s costs, such costs to be paid in the same priority as the respondent’s costs as applicant for the sequestration order.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Date: 11 February 2014
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