Seymour v Housing Guarantee Fund Ltd

FEDERAL COURT OF AUSTRALIA

Seymour v Housing Guarantee Fund Ltd [1999] FCA 1441

BANKRUPTCY – sequestration order made by Registrar – on review, judge declined to go behind judgment debt – no question of principle

Corney v Brien (1951) 84 CLR 343 applied
Udovenko v Mitchell (1997) 79 FCR 418 applied

WALTER JOHN SEYMOUR v HOUSING GUARANTEE FUND LTD

VG 7977 of 1998

CARR, SUNDBERG & KENNY JJ
10 AUGUST 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7977 of 1998

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	WALTER JOHN SEYMOUR Appellant
AND:	HOUSING GUARANTEE FUND LTD Respondent
JUDGES:	CARR, SUNDBERG & KENNY JJ
DATE OF ORDER:	10 AUGUST 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7977 of 1998

On appeal from a Judge of the Federal Court of Australia

BETWEEN:	WALTER JOHN SEYMOUR Appellant
AND:	HOUSING GUARANTEE FUND LTD Respondent

JUDGES:	CARR, SUNDBERG & KENNY JJ
DATE:	10 AUGUST 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT:           

Introduction

1. This is an appeal from orders made by a Judge of the Court dismissing the appellant’s motion for an order setting aside a sequestration order made against him by a Registrar of the Court.

   Factual Background

2. On 2 March 1999 a Registrar of the Court made a sequestration order against the appellant.  That order was made on the petition of the respondent, Housing Guarantee Fund Limited (“the Fund”).  The petition was founded on a bankruptcy notice that had been served on the appellant, requiring him to pay, or make arrangements for the payment of, a judgment debt in the sum of $62,297 together with interest fixed at $377.87.  The respondent obtained that judgment in the Domestic Building Tribunal (“the Tribunal”), a body established under the Domestic Building Contracts and Tribunal Act 1995 (Vic) now known as the Domestic Building Contracts Act 1995 (Vic) . That judgment was then registered as a judgment of the Supreme Court of Victoria. By motion on notice dated 11 March 1999, the appellant sought an order that the Registrar’s decision be set aside. The learned primary judge assumed that the appellant also sought an order that the petition be dismissed.

   The Proceedings before the Learned Primary Judge

3. His Honour noted that the appellant’s motion was supported by an affidavit sworn by his son.  His Honour set out the contents of that affidavit (omitting formal parts) in full in his reasons for judgment.  It read as follows:

   “I allege the following that the H.G.F. Ltd, an institution of the State Government of Victoria is guilty of breaching the Victorian and Federal Constitution and further allege that the H.G.F. Ltd, has commited (sic) an act of Treason by way of the following civil and criminal offences…