Trevor James Eriksson v Commonwealth Bank of Australia ACN 123 123 124

[2015] HCASL 243

Trevor James Eriksson
v
Commonwealth Bank of Australia ACN 123 123 124

[2015] HCASL 243
S193/2015

1. On 1 May 2013, the respondent ("the Bank") filed a creditor's petition against the applicant in the Federal Circuit Court of Australia arising from the applicant's failure to comply with a bankruptcy notice based on a judgment debt ("the consent judgment").

2. By notice filed on 9 July 2013, the applicant objected to the petition, asserting that he had a counter-claim, set-off or cross-demand, equal to or exceeding the amount of the judgment debt, that he could not have set up in the proceeding in which the judgment was obtained.  In the alternative, the applicant implicitly submitted that the petition should be dismissed for other sufficient cause.  The claims on which the applicant relied were those contained in a statement of claim filed in the Supreme Court of New South Wales on 9 July 2013 ("the SOC").  The Federal Circuit Court (Judge Altobelli) found that the applicant had failed to establish that any of the matters pleaded in the SOC could not have been set up in the proceeding which resulted in the consent judgment.  Moreover, the matters pleaded in the SOC were explicitly covered in the Deed of Release signed by the applicant on which the consent judgment was based.  Judge Altobelli found that there was no basis upon which the discretion to dismiss the Bank's petition should be exercised.  A sequestration order against the applicant's estate was made.

3. The applicant appealed to the Federal Court of Australia (Pagone J) seeking to have the sequestration order set aside.  His Honour found that the primary judge was right to hold that the applicant did not have a counter-claim, set-off or cross-demand to engage the discretion to adjourn the hearing of the petition pending determination of the former.  The appeal was dismissed.

4. The applicant seeks special leave to appeal to this Court. 

5. The applicant is not legally represented and the application falls to be determined under r 41.10 of the High Court Rules 2004 (Cth).

6. The application for special leave was not filed within time and the applicant asks that compliance with the Rules be dispensed with.  There is no utility in making the order sought. 

7. The applicant's first ground of appeal is an unparticularised assertion that the Federal Court failed to find that the circumstances leading to the execution of the Deed of Release disclosed a basis for going behind the consent judgment.  The second ground is an unparticularised assertion of error in failing to find that Judge Altobelli's decision was affected by legal, factual or discretionary error.  Nothing in the applicant's summary of argument calls into question the correctness of the judgment of the Federal Court.  An appeal to this Court would have no prospect of success. 

8. The application is dismissed.

9. Pursuant to r 41.10.5, we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
17 December 2015 S.J. Gageler