Re Basile, Tony (also known as Basile, Orlando) Ex parte Ancich, Eric John (trading as John Ancich & Co.) [1979] FCA 109

he application to the District Court before him in which the

jappellant admitted he owed the sum of $1925.85 and in which he

offered to pay this amount no time was mentioned when it would be paid nor is there any evidence that there was any tender of the

money. In addition no notice of intention to oppose the making

of a sequestration order was filed under the provisions of r.20

of the Bankruptcy rules nor did the appellant seek to contest the

validity of the debt before the learned trial judge. In addition

no attempt was made to resist the making of the sequestration

order on the ground that the appellant could pay his debts.

| The case was presented on appeal as a request to review

the decision of the learned trial judge on the facts before him.

When the affidavit of Mr. Litster was being read counsel for the respondent objected to the admissibility of pars.10,11 and 12 of that affidavit upon the basis that the true nature of the appeal confined the hearing to matters that existed at the date the sequestration order was made. Counsel then started to

argue the nature of the appeal to this Court and counsel for the

appellant was then asked about his attitude. He replied:

"We do not rely upon paragraphs 10, ll, 12 or 13 1n any way to argue that his Honour was wrong, but what we da say 18S that if we can persuade your Honours that his Honour was wrong on the material before him then the material in those Paragraphs goes to show the sort of

order that ought to be made by this court and goes to show that there is some point to the appeal. With ' respect, I take the point of Deane J. that ut is necessary to show there has been no trial, for example in tne District Court of New South Wales, resulting in a judgment against the appellant. If that were so, our point would be worthless.

| appeal appearing at page 46 of the record sought an order from this court that the petition be dismissed 1 or adjourned. Adjournment would have been the appropriate order if,

i the application before the District | Court had not been resolved but it is relevant for your Honours to know

It was upon this basis that evidence was admitted of the application to set aside the Judgment having been filed, of the order setting aside the judgment having been made, of the payment

into Court of $2,500, and of further pleadings having been filed

In my opinion the whole appeal was argued by counsel on the basis that the guestion for our determination was whether the

learned trial judge was wrong on the facts before him in not

TE ey ena tere ney 8 Te eter ren eremtenrrrersurennennrtrataeametitnn neg

granting the adjournment sought (the first ground of appeal argued) or in not dismissing the appeal (the second ground of appeal argued). It was only in the event of the Court being satisfied of one or other of these matters upon the evidence before the learned trial judge that the evidence of events wnich took place after the pronouncement of the sequestration order became relevant and then only relevant for the purpose of qpeiaing what was the appropriate order for the Court to make. Before the learned trial judge it was common ground that the District Court could properly have entered 'judgment for

$1925.83. It was held by Gibbs J. in Re Bedford; Ex parte H.C.

Sleigh (Queensland) Pty. Ltd. (1967) 9 F.L.R. 495 at pp.498-499

that, 1f a judgment is wrongly entered for an amount in excess of the proper debt, bankruptcy proceedings founded on that judgment are not necessarily invalidated. In my opinion that case is relevant in the appeal before us because 1t 1S common ground that, at the time when the sequestration order was made, the appellant was rightly indebted to the respondent for an amount

In considering the first ground of appeal it is necessary to examine the principles governing such an appeal and I would refer to the judgment of C.A. Sweeney 3., with whose

reasons JI agreed, in Field v. Commercial Banking Co. of Sydney

Ltd. (1978) 22 A.L.R. 403 at pp.412-414. In my opinion the

' decision of the learned trial judge to refuse an adjournment was

an exercise of his discretion and on the facts hefore him I am Satisfied that the exercise of his discretion to refuse an t

adjournment waS a proper exercise of his discretion and I see no

reason to uphold the appeal on this ground. There was na

'evidence before the trial judge that any application had been

made then to set aside the judgment nor indeed 1S there any evidence before us that such application was filed before the sequestration order was pronounced. Whether or not it is appropriate or permissible in certain cases for this court to take into account evidence of matters which have taken place after the trial judge pronounced his order in considering whether

an appeal should be allowed, I do not consider this is such a

I do not see how the upholding of this appeal would

I now pass to the second ground of appeal which was

requirements of s.47({1) (a) of the Bankrutpcy Act, 1966, and with

Paragraph 2 of the affidavit of Mr. Ancich in support of the petition verifies par.3 of the petition. This is in

accordance with the usual form. The deponent has, however,

en aan mega Neen ee Te neneeeteretere anny wernnere wer =

added par.3 to his affidavit. This paragraph is not normally added and in it the deponent has purported to verify for a second

time and, in what I consider was a superfluous way, that the debt

had not been compounded or secured to the deponent's Satisfaction. I consider that the affidavits in support of the

petition were adequate and I do not see any need to consider

I would dismiss the appeal and order that the appellant pay the respondent's costs of the appeal and of the motion to

r I certify that this andthe ~*7ve preceding pages are a true copy of the Reasons for Judgment herein of his Honour

Icerlil, thet tharandhepiereding page' aa {ruc copy of the resvas for Judqnionl herr of

His Honour Mr Justice Deane, KO Vea tunstie "" ASSOCIATE