Reilly, H.M. v Citibank Savings Ltd

[1991] FCA 552

THE FEDERAL COURT OF AUSTRALIA	)
) \

D DISTRICT REGISTRY	1	No. G 13 of 1991
1

DIVISIm 1

N E

QF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: HUGH MacDONALD REILLY

Appellant

AND: GITIBANK SAVINGS LIMITED

Respondent

HINUTE OF ORDER

!knluam : Morling, Neaves and Spender JJ.

-	: 8 August 1991
j!tmL&m	Brisbane

COURT ORDERS THAT:

1.    The application by the appellant by notice of motion filed on 5 August 1991 to amend the notice of appeal herein be refuaed.

2.    The appeal be dismissed.

the Federal Court Rules.

3. The coets of the reepondent of and incidental to the appedl be taxed and paid in accordance with the - - -

Bankruotcv Act 1966 (Cth) as costs of the petitioning creditor.

Settlement and entry of orders is dealt with in Order

a THE FEDERAL COURT OF AUSTRALIA	)
1 l

D DISTRICT REGISTRY	1	No. G 73 of 1991
1 1

QN APPEAL FROM A SINGLE JUDGE

DF THE FEDERAL COURT OF AUSTRAL14

BETWEEN: pUGH MacDONALD REILLY

Appellant

AND% DTIBANK SAVINGS LIMITED

Respondent

W: Morling, Heaves and Spender JJ.

QhTB! 8 August 1991

BX TEMPORE REASONS FOR JUDGMENT

lmml!GL

I will ask Neavee J. to deliver the first judgment.

m u E L L

On 3 May 1991, a judge of this Court made a bequeetration order against the estate of the appellant, Hugh NdcDonald Reilly. The sequestration order was based upon a creditor's petition presented on 20 October 1990. The petition was founded on the failure of the appellant to comply with the requirements of a bankruptcy notice served upon him on 4 September 1990.

Prom the judgment given on 3 May 1991 the appellant

appealed to this Court. The notice of appeal is dated 23 May

1991. Three grounds of appeal were therein identified, none

of which is now pursued by the appellant. The appeal came on
for hearing on 7 August 1991.

On 5 August 1991 a notice of motion was filed on bghalf of the appellant seeking leave to amend the notice of appeal by deleting the grounds of appeal therein identified

and substituting, as the only ground of appeal relied upon, a
qrotlnd that the bankruptcy notice on which the petition was

founded was invalid.

In my opinion leave to amend the notice of appeal in

the manner sought should be refused. There are, in my view, a

number of considerations that lead to that result.

The substance of the matter on which the appellant

now wishes to rely is that the bankruptcy notice referred to

the judgment on which the notice was founded as having been	obtained "in the Magistrates Court of Queensland held at
SouthportW. It is said, and I think conceded, that the judgment was in fact obtained at the Magistrates Court of Queensland held at Brisbane.
No application to set aside the bankruptcy notice lode made by the appellant at any stage prior to the commission of the act of bankruptcy alleged. The point was not adverted to in the notice of intention to oppose the tietition filed on behalf of the appellant. The point was not raised at the hearing of the petition. It was not taken as a ground of appeal in the notice of appeal filed on 23 May 1991. As has dlready been stated, it was not raised until 5 August 1991, junk two days prior to the hearing of the appeal.
Bearing in mind the whole history of the matter as diacloeed in the papers prepared for the purposes of the Appeal, I am of opinion that the point raised has not Bufficient merit to warrant the granting of leave to amend the kotice of appeal at this late stage of the proceedings.
I would, therefore, refuse leave to amend the notice dk appeal and dismiss the appeal.
E t m R E L L

I agree.

ktl&mLL

In my opinion, this is an appropriate case in which to grant leave to amend the notice of appeal. whilst I recognise that the appellant's case is without merit and that

the matter sought to be argued should have been raised before

hk Justice Pincus and, indeed, when the bankruptcy notice was

first eerved I think leave to amend should be granted because

of the special nature of bankruptcy proceedings.

l

However, I should add that ha$ing heard full argument on the point which the appellant desires to argue I am far from being persuaded that it is valid. I think there

6 much to be said for the view that the reference to

Southport inetead of Brisbane in the bankruptcy notice was a formal defect or irregularity within the meaning of S. 306 of the m t c v Act and that no injustice, substantial or

otherwise, was caused the appellant thereby.

In accordance with the views of the majority, leave

to amend ie refused.

It being conceded by counsel for the appellant that

the appeal cannot succeed on any of the grounds taken in the Hotice of appeal, the appeal is dismissed with costs which are

to form part of the respondent's costs as petitioning creditor

and are to be paid out of the estate of the bankrupt.

I certify that this and the preceding three (3) pages

are a true copy of the

Reasons for Judgment herein of their Honours Mr Justice Morling, Mr Justice Neaves and Mr Justice Spender.

Aseociate

Dated:  9 '1 &s?L, X

G	h j h 5 t 1 4 1 1
l

Counsel for the appellant : Mr P.J. David

Solicitors for the appellant : A.P. Hodgson and Associates

Counsel for the respondent : Mr: D. Pestorius Solicitore for the respondent r Henderson Trout

Dates of hearing r 7, 8 August 1991

Date of judgment : 8 August 1991