Re Joseph Hedrlin

[1987] FCA 434

NOT FOR GENERAL DISTRIBUTION

!.

i i THE FEDERAL IN COURT OF AUSTRALIA

I 1

I	DIVISION	GENERAL	j
I	1

BANKRUPTCY	DISTRICT	OF	) No. W.448	of	1983
1

THE STATE OF NEW SOUTH WALES AND

1

THE AUSTRALIAN CAPITAL TERRITORY )

RE:

JOSEPH HEDRLIN

Bankrupt (Applicant)

CORAM:	WILCOX J
PLACE :	SYDNEY

I	DATE :	14 JULY 1987
I

I	MINUTES OF ORDER
I
I

I	COURT	THE	RDERS	THAT:
I
I
!

L -

1. The application, insofar as it r ,e1 ates to the first

I , .

three orders sought, be dlsmlssed. c . 3

2. The application, lnsofar as it relates to the fourth

order sought, be adjourned untll 2.15 p.m.

NOTE :	Settlement	and entry	of orders
Bankruptcy	Rule 124.

I

I

I	*
I
' I
!
I

NOT FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

1

DIVISION	GENERAL	1
1

BANKRUPTCY	DISTRICT	OF	) No. W.448 of 1983
)

THE STATE OF	NEW SOUTH WALES AND	)
1

THE AUSTRALIAN CAPITAL TERRITORY )

!

RE:

JOSEPH HEDRLIN

Bankrupt (Applicant)

CORAM: WILCOX J

PLACE: SYDNEY

DATE : 14 JULY 1987

EXTEMPORE REASONS FOR JUDGMENT

There is before the Court an application filed by the

bankrupt, Joseph Hedrlin, dated 3 June 1987, in which he seeks

i

four orders: firstly, annulment under s.l54(l)(a) of the

Bankruptcy Act 1966 on the basis that the sequestratlon ought

never to have been made. Secondly, leave to appeal to the

Full Court against the making of the sequestration order on 29

June 1983. Thirdly, discharge under s.149(1). Finally,	I .,
removal of the trustee, Max Christopher Donnelly.
I .

2.

The sequestration order has already been the sub~ect

of one appeal to a Full Court, which appeal was dismissed.

According to Hr Hedrlin, the point that he now seeks to

agltate was not then known to him and consequently was not

ruled on by the Court. Apparently it was not raised at the

time of the making of the sequestration order. No notice of

opposltlon, at least on that ground, was filed. Consequently,

any evidence which might have been available to the

petitioning creditor in respect of the matter, had the point

been taken, was not filed.

Put shortly, the point is that the creditors petltion

was not sealed on behalf of the petitionlng creditor, namely

!

L ,

the proprietors of Strata Plan No.3670, in a manner

' .

conformable with the Strata Titles Act 1973 (NSW), under which

that body corporate was constituted. Section 55 of that Act

deals with the keeping and affixing of a common seal of a body

corporate. The common seal may be affixed, in the case of a

body corporate constituted by more than two proprietors, which

is the present case, by such two persons -- being proprietors

or members of the councll -- as the body corporate determines:

or, in the absence of any such determinatlon, the secretary

and other member of the council. Alternatively, under

sub-s.(3), a managlng agent may, for the purpose of exercising

l

or performing any of his powers, authorities, duties or

I

€unctions, be entltled to attest the fact and the date of the

affixing of the seal by his signature.

3 .

I

Section 78 provides for delegation to a managlng

agent of all of the powers, authorltles, duties and functlons

t

t

glven by the Act to a body corporate except for some presently

Immaterial exceptlons. There 1s no evidence as to the extent

of any delegatlon in thls case to a managing agent. The

petition appears to have been signed by the two persons named

therein; namely, Patrick Owen Newland and Margaret Edlth

Pollard. I am told from the bar table by Mr Hedrlin, although

there 1s no evidence on the matter, that neither of these

people were proprietors of allotments and consequently would

not quallfy under s.55(2). He states that they were

associated with a real estate firm and this seems to be

corroborated by the fact that there is a stamp put across the

signatures, V J Ray Pty Limited, which company, Mr Hedrlin

1- .

says, was the managing agent. i

It seems, therefore, that the common seal was afflxed

pursuant to s.55(3). As I have sald, there is no evidence as

to the extent of any delegation, but it would not be at all surprising if there was a delegation of a power to recover

moneys owing to the body corporate.	In the- current case,	I '
8 ,

pursuant to an order made in the Supreme Court of New South

Wales by Hunt J In 1981, money was owed by Mr Hedrlin to the

body corporate. I see no reason why I should presume that the

i

relevant delegation was not held, partlcularly having regard

l	to the nature of the claim and the fact that there was no
!
notice of opposition or other opportunlty for the creditor to
deal wlth thls matter.

; .

I 4 .

I m not sotisflcd that thc scgucotratlon ought not

to have been made and consequently I refuse the application

for annulment.

In relation to the appeal to the Full Court, I am not

satlsfied that there is any substance In the matter whlch is

sought to be ralsed. For a similar reason I, therefore,

refuse that applicatlon.

Nothing has been put before the Court in support of

the application to discharge: and accordingly I refuse that

I, I ,

order. t

The document whlch was handed to the Court by Mr

Hedrlin and entitled "written submlsslons" sets out in some

detail the history of varlous applicatlons whlch the trustee	!-
has contemplated making in respect of properties sald to be jointly owned by Mr Hedrlin and his wife or, alternatively,

the subject of settlements under s.120 of the Bankruptcy Act.

Further information on these matters is contained In the

affidavit of Mr Donnelly, sworn on 20 February 1987 and filed

in connection with a previous application for discharge, to

which affidavit various annexures are attached.

It appears that Mr Donnelly has had in mind, for a

long time, making appropriate appllcations. There has been a i'

problem about financing the applicatlons because of the lack

of assets in the estate. But, on 2 4 June 1986, the

Inspector-General In Bankruptcy informed Mr Donnelly that the

I

i

5.

i	I	'	Commonwealth would fund an applicatlon in	respect of a	I :
I	I '

I	property at Woollgoolga.	Thlrteen months	later that	!
!
I

I	application has not come before the Court	.	Although there may
I

be reasons for thls, this 1s a most unsatlsfactory sltuatlon.

I was told by the solicitor for the trustee this morning that

the respondents' affldavits were all filed some two months ago

I	and that the matter has been with counsel for settling
affidavits in reply for the last two months. This is
j
unsatisfactory and I propose to have that matter mentioned at
I	2.15 p.m. today for the purpose of fixing both a date for
I
I
filing affidavits in reply and a hearing date. I think that
!
I
I
the sooner there is some finality in this estate, the better
for all concerned. Because I have some sympathy wlth the
complaint by Mr Hedrlin about delays, I do not propose finally
I
to deal with the fourth application in the matter currently
before me. I will stand that over, in the first instance,
i	until 2.15 p.m. and then probably untll the hearing date of
the application in connection with the Woollgoolga matter. I
i	wlll conslder that at 2.15 p.m.

i _.

The only orders that I make at this stage is that I

I

dismiss so much of the application dated 3 June 1987, as

I lnvolves the first three orders sought therein. I further

adjourn the matter untll 2.15 p.m. today.

I I

I certify that this and the four ( 4 )

precedlng pages are a true copy of

the Reasons for Judgment of

!	his Honour Mr Justice Wilcox.
I
!
Date : 12 AugLst 1987
!

r

6.

i

Appearance for the Appllcant

Bankrupt:	Mr	J Hedrlin in person
Counsel for the Respondent

Trustee:	Mr P J Duggan
Solicltors for the Respondent
Trustee :	M F Callanan & CO

he ring: Date(s) 14 of J u l y 1987

!

1 .

.'.

!