Troiani & Anor v Peldan & Anor

[2005] HCATrans 931

[2005] HCATrans 931

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B51 of 2005

B e t w e e n -

SANTE TROIANI

First Applicant

RITA TROIANI

Second Applicant

and

MICHAEL PELDAN AND MORGAN LANE (AS TRUSTEES OF THE BANKRUPT ESTATE OF SANTE TROIANI AND RITA TROIANI)

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY 14 NOVEMBER 2005, AT 2.37 PM

Copyright in the High Court of Australia

__________________

GUMMOW J:   The applicants seek special leave to appeal out of time from a decision of the Federal Court (Dowsett J) dismissing an appeal from orders of the Federal Magistrates Court. Pursuant to s 146 of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”), that Court ordered that a distribution be made to creditors of the present applicants who had proved debts in accordance with Div 5 of the Bankruptcy Act, as if the applicants had filed a statement of affairs and those creditors had been stated in it to be creditors.

The Federal Magistrate considered the history of the applicants’ bankruptcy proceedings and was satisfied that the trustee in bankruptcy had taken all reasonable steps to obtain a statement of affairs; that the applicants had deliberately failed to file a statement of affairs; and that there was no lawful excuse or any valid justification or explanation for the applicants’ failure to file a statement of affairs.  The Federal Magistrate concluded that the interests of the creditors and the public interest required that the distribution of dividends to the applicants’ creditors should not be further delayed.

Dowsett J described the Federal Magistrate’s decision as “a decision in exercise of a discretion”, the reasons for the making of which were “in all respects … entirely orthodox”.  His Honour could not see that there was any miscarriage of the discretion in making the appropriate order.  The arguments the applicants raised were not viable grounds of appeal and there had been more than adequate opportunity to raise all the relevant issues.

We have considered the applicants’ written case and the reasons of the Federal Magistrate and Dowsett J.  There would be insufficient prospects of success in any appeal to this Court from the Federal Court to warrant a grant of special leave to appeal.  Accordingly, the application for an extension of time in which to apply for special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for an extension of time in which to apply for special leave.  I publish the disposition signed by Kirby J and myself.

AT 2.39 PM THE MATTER WAS CONCLUDED