Troiani v Peldan and Lane (Trustee), in the matter of Troiani (Bankrupts)

[2005] FCA 841

FEDERAL COURT OF AUSTRALIA

Troiani v Peldan & Lane (Trustee), in the matter of Troiani (Bankrupts)
[2005] FCA 841

SANTE TROIANI AND RITA TROIANI v PELDAN AND LANE AS TRUSTEE IN BANKRUPTCY OF SANTE AND RITA TROIANI

QUD 145 OF 2004

DOWSETT J
1 JUNE 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 145 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SANTE TROIANI
FIRST APPELLANT

RITA TROIANI
SECOND APPELLANT

AND:

PELDAN AND LANE AS TRUSTEE IN BANKRUPTCY OF SANTE AND RITA TROIANI
RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

1 JUNE 2005

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application for an adjournment be refused.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 145 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SANTE TROIANI
FIRST APPELLANT

RITA TROIANI
SECOND APPELLANT

AND:

PELDAN AND LANE AS TRUSTEE IN BANKRUPTCY OF SANTE AND RITA TROIANI
RESPONDENT

JUDGE:	DOWSETT J
DATE:	1 JUNE 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application for an adjournment of the hearing of an appeal from the decision of a Federal Magistrate.  The matter has followed an unfortunate path in one respect.  It seems that, at a Full Court callover on 27 April 2005, Spender J indicated that the matter would be listed for hearing in August.  Subsequently, the Chief Justice decided that the matter should be heard before a single judge.  It was therefore listed before me for hearing today.

2. The parties were notified of this hearing date on 16 May 2005.  They have therefore had in excess of two weeks to prepare for it.  Keeping in mind that it is an appeal, I find it difficult to believe that that the parties have had inadequate time to prepare.  The appellants are unrepresented and submit that they were proceeding upon the basis that they had until August to be ready and so seek an adjournment.  In some circumstances, notwithstanding the above view, I would be inclined to grant such an adjournment, giving the appellants the benefit of the doubt.  That would be particularly so if this were a trial.  However, it is not.  It is an appeal, and the issues one might reasonably infer, should by now have been sorted out.  The judgment upon which the sequestration orders were made was given after a summary judgment application in 2001 in the Supreme Court.  There was an appeal from that decision, and the judgment was reduced in part.  However, a substantial amount still remains owing pursuant to it.  That was the subject matter of the bankruptcy proceedings.  The bankruptcy notice and/or the sequestration order were/was also the subject of an unsuccessful appeal. 

3. Thus there has been a substantial amount of time since the judgment creditor’s claim was first made.  The matter has been ventilated in both the Supreme Court and the Federal Court.  All of these proceedings have, in effect, resulted in no success for the present appellants, other than in having the judgment reduced in the Court of Appeal.  In those circumstances as I say, one might reasonably infer that all of the issues have been thoroughly canvassed and that the preparation for the appeal should not be a substantial matter. 

4. The appeal concerns an order pursuant to s 146 of the Bankruptcy Act 1966 (Cth) that there be a distribution to creditors in the absence of the filing of a statement of claim by the bankrupts. The notice of appeal indicates that the real challenge that the appellants wish to make is to the debt, or the amount of the debt, owed by them to the judgment creditor. That was the subject matter of the judgment in the Supreme Court, the subsequent appeal and the bankruptcy notice. Any further challenge could have been raised in the statements of affairs. The appellants chose not to file such statements. In those circumstances, the only course open to the trustee was pursuant to s 146.

5. The appellants have made it clear to me that the only ground which they wish to ventilate, and in respect of which they seek time to prepare, is an assertion which they now make for the first time, that the sum of about $4 million has apparently gone missing from their accounts with their bank, the relevant judgment creditor.  Clearly, such an assertion is very difficult to accept at face value.  That anybody other than the most wealthy could not be aware that their bank account was $4 million less than it should have been would be a very rare event indeed.  No explanation is given as to why the parties were not aware of this at an earlier time, save that they did not have access to documents.  The time for raising such an issue is now well past.

6. In the circumstances, I cannot see that challenging the amount of the debt at this late stage can be anything other than a further delaying device.  In those circumstances I propose to refuse the application for an adjournment.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            22 June 2005

Counsel for the Appellant:	The appellants appeared in person.
Counsel for the Respondent:	Ms C Muir
Solicitor for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	1 June 2005
Date of Judgment:	1 June 2005