Re Valkanis, A Ex Parte Valkanis, A v Cariss, P.J.

[1993] FCA 240

akc I m 3

JUDGMENT No. ........ .,....... , .......,.,

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	1 No. VB 2457 of 1992
BANKRUPTCY DISTRICT OF THE	)
STATE OF VICTORIA	1

RE : ALEXANDRA VALKANIS

A Bankrupt

EX PARTE:  ALEXANDRA VALKANIS

Applicant

- and -

PAUL JOSEPH CARISS

F~rstnamed Respondent

- and -

OFFICIAL TRUSTEE IN BANKRUPTCY

(AS TRUSTEE of the Bankru~t	Estate
,---	- - - -

of Alexandra Valkanis)

Secondnamed Respondent

JUDGE	:	Gray J.
PLACE	:	Melbourne

made by Olney J. on 26th August 1992, consequent upon a creditor's petitlon which was brought against her by a

DATE : 17th March 1993

EX TEMPORE REASONS FOR JUDGMENT

The applicant has applied for annulment of her
bankruptcy. She was made bankrupt by a sequestration order

solicitor. In order to grant the applicant the annulment which she seeks, I would have to be satisfied that the sequestration order ought not to have been made, within the meaning of S. 153B of the Bankruptcy Act 1966.

I have very great sympathy with the position in which the applicant finds herself. She brought proceedings in the County Court after having been involved in a motor vehicle accident. The jury assessed her injuries as being worth $16,000 in damages but found that her negligence had contributed to the occurrence of the motor vehicle accident to the extent of sixty per cent. Accordingly, judgment was entered in her favour only for $6,400. She then engaged the petitioning creditor to act for her and undertook an unsuccessful appeal to the Full Court of the Supreme Court of Victoria, thereby incurring liability for costs.

The applicant is absolutely convinced that the
petitioning creditor has received from the Transport Accident

Commission a cheque for $6,400, which she believes he has

creditor did not receive that amount of $6,400; rather it was	appropriated to his own use and not to her credit. On the evidence before me, there can be doubt that the petitioning
paid by cheque to the solicitors who acted for the defendant whom the applicant sued, and was subsequently returned to the Transport Accident Commission.

The applicant also believes that she was badly advised and that she was over-charged by the petitioning creditor. Those are issues which she had the opportunity to litigate, and did litigate, in the Heidelberg Magistrates' Court, when the petitioning creditor sued her for his costs, and when judgment was entered against her after her evidence and that of the petitioning creditor had been heard. She sought to re-agitate those matters on 26th August 1992 before Olney J., and again today before me. I take the same view as was taken by Olney J., namely, that it is not appropriate for the Court on the hearing of a creditor's petition based on a judgment to attempt to go behind the judgment and to enter into the merits on those issues. I therefore refrain from doing so.

I am far from satisfied that Olney J. ought not to have made the sequestration order and accordingly, it is not open to me to annul the applicant's bankruptcy. The application will therefore be dismissed.

The order I make is as follows:

1.    The application for annulment filed on 18th December 1992 is dismissed.

2.    The costs of Paul Joseph Cariss of and incidental to the application, including reserved costs, be taxed and paid out of the estate of the bankrupt.

Counsel for the applicant:

Solicitor for the applicant:	Litigant in person
Counsel for the respondent:	Mr Ellis
Solicitors for the respondent:	Mahons
Counsel for the second respondent:	Mr Carroll
Solicitor for the second respondent:	Australian Government Solicitor

Date of Hear~ng:	17th March 1993
Date of Judgment:	17th March 1993

I certify that this and the

preceding three (3) pages are a true copy of the reasons for judgment of his

Honour Mr Justice Gray	A
Associate:

Date: 17th March 1993