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

[2005] FCA 842

FEDERAL COURT OF AUSTRALIA

Troiani v Peldan & Lane (Trustee), in the matter of Troiani (Bankrupts)
[2005] FCA 842

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 appeal be dismissed

2.        The appellants pay the respondent’s costs of the appeal, including reserve costs.

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. As I have observed, the decision under appeal is a decision pursuant to s 146 of the Bankruptcy Act. It was a decision in exercise of a discretion. The reasons for making the order appear in all respects to be entirely orthodox. The appellants failed to file statements of affairs. An application was made under s 146 of the Bankruptcy Act 1966 (Cth). In the circumstances I cannot see that there was any miscarriage of the discretion in making the appropriate order.

2. The only basis upon which the appellants seek to challenge the decision is the assertion, which they have been making for many years, that they were not indebted to the bank at the relevant time and that therefore judgment ought not have gone against them in the Supreme Court, the bankruptcy notice ought to have been set aside and the sequestration orders ought never to have been made.  They say that the bank has been fraudulent and that they have only now come to understand either the nature or the extent of such fraud.  As I have already observed in connection with the application for an adjournment, it seems that there has been more than adequate opportunity to raise all relevant issues.  An allegation of fraud of some sort was made against the bank, at the very latest, in the Court of Appeal in 2002, following the judgment of the Chief Justice in 2001.  In those circumstances, it cannot be credited that there is now a new and viable allegation of fraud by the bank, leading to a loss of $4 million.  I can come to no conclusion except that, once again, these proceedings are being used as a method of delay, for what reason, I do not know. 

3. No viable ground of appeal is advanced, and the appeal must be dismissed.

I certify that the preceding three (3) 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 Appellants:	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