Strangio v Westpac Banking Corporation
[2008] FMCA 300
•18 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STRANGIO v WESTPAC BANKING CORPORATION | [2008] FMCA 300 |
| BANKRUPTCY – Bankruptcy notice – application for extension to comply – decision of Registrar stands. |
| Applicant: | BRUNO STRANGIO |
| Respondent: | WESTPAC BANKING CORPORATION |
| File number: | MLG 1239 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing date: | 18 February 2008 |
| Date of last submission: | 18 February 2008 |
| Delivered at: | Melbourne |
| Delivered on: | 18 February 2008 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr C.J. Nichol |
| Solicitor for the Respondent: | Gadens Lawyers |
ORDERS
That the application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1239 of 2007
| BRUNO STRANGIO |
Applicant
And
| WESTPAC BANKING CORPORATION |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
In this matter on 25 October 2007 Mr Strangio filed an application for an extension of time to comply with a bankruptcy notice.
The application asserted that the grounds were set out in
the accompanying affidavit and that affidavit was affirmed
on 25 October 2007 by Kimani Adil Boden. The affidavit shows
that on 5 October 2007 Mr Strangio was served with a bankruptcy notice based on the orders of his Honour Judge Holt in the County Court of Victoria made on 21 May 2007.
The affidavit of Mr Boden asserts that the orders were made without
a determination of the case on its merits. (I take it it is a Mr Boden.
I am sorry if I am insulting her by getting the gender wrong).
On 14 June 2007 Mr Boden filed an originating motion in the Supreme Court of Victoria setting out in some detail why it was said that Judge Holt's orders should be set aside. Both the affidavit and the Originating Motion annexed to Mr Boden’s affidavit.
The affidavit went on to say that Mr Boden was informed by counsel and believed there were good prospects of success. The bankruptcy notice shows that the debt alleged was the sum of $36,144.75.
The papers annexed to Mr Boden's affidavit show that the figure of $36,000‑odd, that I have just referred to, represented the Plaintiff's - that is to say, the Respondent in this proceeding - costs taxed pursuant to Judge Holt's orders made on 21 May 2007. Judge Holt’s order itself shows that on 21 May 2007 what is referred to as the trial date of 21 May 2007 was vacated and the matter was refixed for trial on 8 August 2007.
The third order made that day was for Mr Strangio to pay the costs of Westpac from 24 April 2007 to 21 May 2007, which appeared to include incidental costs of preparation. I note that the order asserted that the costs would be taxed on a solicitor‑client basis on scale D, whereas the order on its face by Registrar Edney appears to assert on its face party‑party costs. I doubt that; I would suspect it must have been solicitor‑client.
The originating motion, as I have said was annexed to Mr Boden’s affidavit, and makes a number of assertions, including that advanced by Mr Strangio before me, to the effect that the case was not in the list of cases for trial on 21 May 2007.
Thus, matters rested until the proceeding came before Registrar Hetyey on 13 November 2007, on which day the matter was adjourned until 3 December 2007 and Mr Strangio was ordered to file and serve by 21 November 2007, a further affidavit in support of his application detailing the basis for the application to set aside the County Court's order and the status of the application. No such material was filed, and when the matter came back before the court on 3 December 2007 Registrar Luxton did not grant the Applicant - who, I note, was then legally represented - the adjournment which was sought and it was noted that there had been non‑compliance with Registrar Hetyey's orders.
From Registrar Luxton's decision, by application for review filed on 10 December 2007, Mr Strangio seeks that I review the decision of Registrar Luxton and asks me to effectively extend the time for compliance with the bankruptcy notice and/or to adjourn these proceedings for about two weeks, in light of his ill‑health. I have been provided with medical certificates that do show that Mr Strangio, very regrettably, is in ill‑health.
The difficulty of course is that the materials filed by Mr Strangio himself show that the judgment of Judge Holt was regularly entered, in the simple sense that there is no dispute that that is what the court ordered and there is no dispute that the document is, as it were, some sort of forgery, and, in my view, if it is to be set aside, it is to be set aside by other authorities having competence to review it.
I am informed by Mr Strangio and Mr Nichol and of course accept that the matter is presently before the Supreme Court before Williams J.
It is not for me to offer any views whatever about that proceeding.
All I will say is that, on the materials as presently filed and noting the non‑compliance of Mr Strangio with the orders made by Registrar Hetyey, there is no proper basis for me to accede to the application for the review of Registrar Luxton's decision. I therefore dismiss the application.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Deputy Associate
Date: 18 February 2008
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