Satchithanantham v National Australia Bank
[2009] FMCA 562
•16 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SATCHITHANANTHAM v NATIONAL AUSTRALIA BANK | [2009] FMCA 562 |
| BANKRUPTCY – Application for annulment of bankruptcy and other orders – abuse of process. |
| Bankruptcy Act 1966, s.153B Federal Magistrates Court Rules 2001 (Cth) |
| NAB Limited v Satchithanantham (No 2) [2009] FMCA 229 Satchithanantham v NAB Limited [2009] FCA 501 |
| Applicant: | THAMBIAPPAH SATCHITHANANTHAM |
| Respondent: | NATIONAL AUSTRALIA BANK |
| File Number: | SYG 786 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 16 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2009 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondent: | Ms N Bearup Dibbs Abbott Stillman |
ORDERS
The application is dismissed as an abuse of process, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth).
No further application by this applicant in relation to the sequestration order made by this Court on 11 March 2009 be received for filing in this Court, except by leave of a Federal Magistrate.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, including any reserved costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 786 of 2009
| THAMBIAPPAH SATCHITHANANTHAM |
Applicant
And
| NATIONAL AUSTRALIA BANK |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me an application filed on 3 April 2009 seeking orders setting aside a sequestration and other orders made by this Court on 11 March 2009, orders setting aside a bankruptcy notice which supported the sequestration order, and also setting aside the bankruptcy petition which followed the bankruptcy notice, and further seeking an order under s.153B of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) annulling the applicant's bankruptcy. There were also consequential orders sought and an order for substantial damages. The application also sought interim orders, the effect of which would be to stay the sequestration order and any enforcement under the Bankruptcy Act.
The application is opposed by the respondent creditor. The matter came before me today from the registrar's list in light of disagreement between the parties whether the application as a whole should be dealt with today or simply the part of it seeking interim relief. Having heard from the applicant, I decided that I should deal with the application as a whole.
The background to the matter is somewhat detailed but has been dealt with in earlier proceedings in various courts. On 12 December 2007 the Supreme Court of New South Wales made a costs order against the applicant. An appeal against the costs order was dismissed by the New South Wales Court of Appeal on 14 July 2008. On 10 December 2008 the High Court refused special leave to appeal to that Court. On 14 May 2008, the respondent creditor served a bankruptcy notice on the applicant based on the judgment debt created by the costs order. The bankruptcy notice was not complied with.
The bankruptcy notice was challenged in earlier proceedings in this Court and that application was dismissed on 1 July 2008 by Smith FM[1]. The applicant appealed from that decision to the Federal Court and on 27 February 2009 his Honour Edmonds J dismissed that appeal[2]. A creditor’s petition was then brought and was listed to be heard on 15 October 2008. There was some delay pending the resolution of the appeal before Edmonds J. The applicant did not attend the hearing of the creditor’s petition which occurred on 11 March 2009. A sequestration order and other orders were made by Smith FM on that day[3]. The applicant appealed from those orders to the Federal Court. On 11 May 2009 her Honour Stone J dismissed that appeal[4]. I understand that the applicant is also seeking special leave to appeal to the High Court against both the judgment of Edmonds J and the judgment of Stone J. I understand that there are also continuing proceedings in the Supreme Court.
[1] Satchithanantham v NAB Limited [2008] FMCA 940
[2] Satchithanantham v NAB Limited [2009] FCA 198
[3] NAB Limited v Satchithanantham (No 2) [2009] FMCA 229
[4] Satchithanantham v NAB Limited [2009] FCA 501
The application is supported by three affidavits by the applicant filed on 3 April 2009, 26 May 2009, and 16 June 2009. That comprises a substantial volume of material, some of which was objected to by the respondent. I received all of the affidavit material on the basis that I would attribute appropriate weight to it and would treat as submissions those parts of it which were submissions rather than assertions of fact. The respondent relies upon the affidavit of Jane Heather Pike made on 7 May 2009. I also received as an exhibit a bundle of documents comprising the applicant's notice of opposition to the creditor's petition, his notice of appeal in the Federal Court earlier this year, and an amended notice of appeal.
The fundamental problem facing the applicant is that he is seeking to re-agitate in these present proceedings issues that have already been dealt with in this Court and in the Federal Court. He invites the Court to again revisit the costs order of the Supreme Court. He also invites the Court to revisit the earlier decisions of Smith FM and the appeals dealt with in the Federal Court.
I am, of course, bound by the two judgments of the Federal Court relating to the bankruptcy notice and the sequestration order. I gave the applicant an opportunity to explain to me whether there was any basis other than the issues which have previously been dealt with in the earlier Court proceedings to support the application for annulment, but having heard his oral submissions at some length, I have not discerned any issue that was not dealt with in the earlier proceedings or which could not have been.
In his judgment at [20], Edmonds J found that the various attacks by the applicant on the debt underlying the bankruptcy notice were vexatious and frivolous and were correctly dismissed by Smith FM. In her judgment at [14] Stone J rejected the claims of procedural unfairness arising out of the applicant's non attendance before this Court when it made its sequestration order.
For his part, Smith FM dealt at some length with the issues raised by the applicant concerning the adverse costs order in the Supreme Court in both of his judgments. Having regard to the earlier proceedings and the material now presented by the applicant, I have come to the view that the present application is an abuse of process. It is simply a vehicle being used by the applicant to re-agitate issues that have already been dealt with. The application should not have been brought and further like applications should be prevented.
I will order that the application is dismissed as an abuse of process, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth). No further application by this applicant in relation to the sequestration order made by this Court on 11 March 2009 be received for filing in this Court, except by leave of a Federal Magistrate.
On the question of costs, costs should follow the event. The respondent seeks an order for costs notwithstanding that the applicant is a bankrupt. The applicant sought to make further submissions in relation to the matter generally but I asked him to resume his seat. I will order that the applicant is to pay the respondent’s costs and disbursements of and incidental to the application, including any reserved costs.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 18 June 2009
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