Hudson v Whalan

The Proceedings 1 This is an appeal from a judgment of a Judge of this Court, Hill J, dismissing an application by the present appellant. In that application, the appellant sought the annulment of a sequestration order made by another Judge of the Court, Tamberlin J, on 19 May 1998. The respondents are the petitioning creditors on whose petition the sequestration order was made. 2 The Official Trustee was not named as a party to the annulment application, although it would seem that the Official Trustee was served with the application as required by Federal Court Rules ("FCR"), Order 77, r 42(2). In any event, the Official Trustee filed a report on the appellant's application for the annulment order, as required by FCR, Order 77, r 44. The report was in evidence in the proceedings determined by Hill J. 3 As with so many bankruptcy matters, this case has a long history marked by a multiciplicity of proceedings. A short chronology is as follows: · On 9 September 1995, the appellant was an unsuccessful candidate for election to Gosford City Council. · On 8 December 1995, he applied to the Local Court at Gosford for orders under the Local Government Act 1993 (NSW) dismissing from office five successful candidates for election to the Council, including the respondents. · On 11 October 1996, the learned Magistrate dismissed the application and on 24 October 1996 his Worship ordered the appellant to pay the costs of the respondents in the sum of $5,540, to be divided equally between them. · On 20 April 1997, the appellant was served with a bankruptcy notice which the respondents had caused to be issued on 8 April 1997. · On 19 June 1997 (after an earlier application had been dismissed by consent), the appellant applied to set aside the bankruptcy notice. · Also on 19 June 1997, the appellant filed a summons in the Common Law Division of the Supreme Court of New South Wales seeking leave to appeal from the costs order made by the Magistrate on 24 October 1996. · On 4 August 1997, Barr J, sitting in the Common Law Division of the Supreme Court, dismissed the appellant's summons. · On 12 August 1997, Lindgren J dismissed the application to set aside the bankruptcy notice after a hearing at which the appellant was not legally represented: Hudson v Whalan, 12 August 1997, unreported. His Honour rejected the two contentions put on behalf of the appellant, namely, that the notice was defective because it overstated the amount due by $2 and because it failed to attach a copy of the judgment or order relating to one of the two creditors. Lindgren J found that the appellant had not given a notice under s 41(5) of the Bankruptcy Act 1966 (Cth) ("Bankruptcy Act") in relation to the alleged overstatement and, consequently, was not able to rely on it. His Honour also held that the failure to attach a copy of the judgment or order was a merely formal defect or irregularity within the meaning of s 306(1) of the Bankruptcy Act and thus did not constitute a ground for setting aside the bankruptcy notice. · On 7 October 1997, the respondents filed a creditor's petition seeking a sequestration order in respect of the appellant's estate. · On 11 March 1998, a Full Court, comprising Branson, Tamberlin and Kiefel JJ, unanimously dismissed an appeal by the present appellant against Lindgren J's decision: Hudson v Whalan, 11 March 1998, unreported. Branson J gave brief reasons for holding that no error had been demonstrated in Lindgren J's reasons. Tamberlin and Kiefel JJ agreed. The appellant was not legally represented on the appeal. · On 20 March 1998, the appellant filed an application for special leave to appeal to the High Court against the decision of the Full Court. · On 19 May 1998, the creditor's petition was heard by Tamberlin J. The appellant's counsel applied for an adjournment of the hearing, on the ground that the application for special leave to appeal to the High Court was pending. His Honour refused the adjournment, observing that four Judges of the Court had unanimously held that the overstatement of $2 (which was the point relied on by the appellant) did not invalidate the notice. Tamberlin J was satisfied that the requirements specified in the Bankruptcy Act and the FCR had been complied with. Accordingly, his Honour made a sequestration order: Donald & Whalan v Hudson, 19 May 1998, unreported. · No appeal was filed by the appellant against the orders made by Tamberlin J. However, on 9 June 1998, the appellant applied, pursuant to s 153B of the Bankruptcy Act, for an annulment of the sequestration order. · On 18 August 1998, Hill J dismissed the application. The appellant was represented by counsel at the hearing of the application. · On 7 September 1998, the appellant filed a notice of appeal from the judgment of Hill J.