Schepis v Esanda Finance Corporation Ltd (ACN 64 004 346 043)

[2006] FCA 1256

FEDERAL COURT OF AUSTRALIA

Schepis v Esanda Finance Corporation Ltd (ACN 64 004 346 043)
[2006] FCA 1256

ANTHONY SCHEPIS AND MICHELLE SCHEPIS v ESANDA FINANCE CORPORATION LIMITED (ACN 64 004 346 043)

QUD 282 OF 2006

DOWSETT J
8 SEPTEMBER 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 282 OF 2006

BETWEEN:

ANTHONY SCHEPIS
First Applicant

MICHELLE SCHEPIS
Second Applicant

AND:

ESANDA FINANCE CORPORATION LIMITED
(ACN 64 004 346 043)
Respondent

JUDGE:	DOWSETT J
DATE:	8 SEPTEMBER 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In the circumstances, it seems clear to me that there is no viable ground of appeal.  Although I am severely handicapped in my capacity to deal with this matter in the absence of a copy of the judgment or any useful grounds of appeal, it seems to be common ground that the bankruptcy notice is based on orders for costs obtained in New South Wales courts, including the Supreme Court, on appeal.  Although the applicants wish to assert that the original judgment was obtained by fraud, it does not seem to me that such an assertion can be successfully pursued, given that the judgment has been paid and the relevant debts all relate to costs orders.  It has not been alleged that they were obtained by any fraud other than that alleged in connection with the original cause of action.  It does not follow that such orders were obtained by fraud simply because the principal judgment was so obtained.  In those circumstances, I can, for the moment, see no basis upon which it would be thought appropriate to upset the Federal Magistrate’s decision.

2. The circumstances in which the applicants failed to file their notice of appeal in time demonstrate a further difficulty for the applicant.  The only reason seems to have been that they did not have the magistrate’s reasons until some days before the expiry of the appeal period.  They then chose not to file the notice of appeal but, rather, to fly to Sydney to consult with legal advisers. 

3. In other words, there is no satisfactory explanation of their failure to file a notice of appeal, and there appears to be no viable ground of appeal.  In those circumstances, the application for leave to appeal is dismissed.  The application for a stay is also dismissed.  I order the applicants to pay the respondent's costs of both motions.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:       20 September 2006

Counsel for the Applicant:	The Applicant appeared in person (via telephone)
Solicitor for the Respondent:	Ms K Carter (via telephone)
Date of Hearing:	8 September 2006
Date of Judgment:	8 September 2006