Federal Court Rejects Debtor’s Bankruptcy Opposition Due to Procedural Issues

OUTCOME: Dismissed

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IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION

No. P 245 of 1983 [NAME] OF THE STATE

OF NEW SOUTH WALES AND THE

ews we

AUSTRALIAN CAPITAL TERRITORY

Re: [NAME]

Ex parte: [NAME]: [NAME] Jd.

24 May 1983 REASONS FOR JUDGMENT

On 28 February 1983 a Deputy Registrar of the Court gave notice that the [NAME]'s petition herein,dated 22 November 1982 would be heard on 17 May 1983. Service of the petition with such notice duly endorsed thereon was effected on [NAME] on

23 March 1983.

On 26 April 1983 [NAME] [NAME] filed herein a six page typed document entitled "Notice of Intention to Opose

(sic) Petition".

When the petition was called on at approximately 10.30 a.m. On 17 May 1983 [NAME] [COUNSEL], solicitor of the firm of [NAME], Solicitors of [ADDRESS], Sydney, appeared for

the [NAME] whilst [NAME] appeared in person.

The parties having then indicated that the matter would be long the matter was stood down in the list. At about 3.30 p.m. On

that day it was clear that the matter would not be reached and

consequently was stood over until noon, 18 May 1983.

When the matter was called on for hearing at about 12.15 p.m. on 18 May 1983 the appearances were as indicated. [NAME] [NAME] objected to the document purporting to be a notice of Opposition to the petition on the ground that such notice did not set out or refer to any statement in the petition that [NAME] intended to deny or dispute or any other ground on which he intended to oppose the petition as is provided for in r.20 of

the Bankruptcy Rules.

Rule 20 provides: "Notice of Opposition to Petition

20. A [NAME] who intends to deny or dispute a statement in a petition or

Oppose a petition on any other ground shall, not less than 3 days before the hearing date of the petition -

(a) file a notice, in accordance with Form 8, setting out or referring to the statement in the petition that he intends to deny or dispute or the other

grounds on which he intends to oppose

the petition; and

(b) serve a copy of the notice on the

solicitor for the [NAME]. "

Further, it was submitted by the [NAME]

that it would appear that the deciment filed by [NAME] raised

matters which had already been determined by the Court or the

Supreme Court of New South Wales in earlier proceedings between the parties and accordingly could not be re-opened in these

proceedings. Further, no affidavit had been filed in support of

the matters alleged in such notice.

It would appear that in or about March 1982, subsequent to the service of the bankruptcy notice herein, doc nents accepted as being affidavits pursuant to s.41(7) of the Bankruptcy Act 1966 sworn by [NAME] were filed wherein [NAME] claimed that he had a counter-claim set-off or cross demand equal to or exceeding the amount claimed in the bankruptcy notice. An application to determine this aspect of the proceedings came on for hearing before Lockhart J. on 14 April 1962 when his Honour declared that he was "not satisfied that [NAME] has a counter-claim set-off or cross demand equal to or exceeding the amount of the sum payable by him under the order of the Supreme Court of New South Wales of 3 April 1981 and the certificate of costs that issued subsequently on 9 October 1981, being a counter-claim set-off or cross demand, that he could not have set up in the Supreme Court proceedings" and ordered that

[NAME] pay the [NAME]'s costs including

reserved costs of the proceedings before him.

The judgment debt on which the petition herein is founded was the amount of costs, duly taxed at $1,536.60, which [NAME] had been ordered to pay in an action in the Supreme

Court of New South Wales brought by him against the [NAME] and a Stipendiary Magistrate (Ne. 16057 of 1980). [ADDRESS] has been informed that that action was an application made under s.112 of the Justices Act (N.S.W.) seeking an order quashing an order of a Stipendiary Magistrate in the Court of Petty Sessions, [NAME] non-suiting [NAME] in an action brought by him against the [NAME]. That action was a claim (inter alia) for moneys equalling the total of certain levies which had been imposed upon each of the owners, including [NAME], of wnits within the common property known as Strata Plan No.3670 and which had been deducted from the moneys paid over by the purchaser of [NAME]'s unit when the same had been

sold by [NAME].

[NAME] appealed to a [ADDRESS] of the Court from

the decision of Lockhart J.. On 27 October 1982 the Full court

after takinc time to consider the matter dismissed the apneal and ordered that [NAME] pay the [NAME]'s costs of the appeal.

[NAME] appears to have a reasonable command of both printed and spoken English but at times, because of an accent, 1t is difficult to fully understand every word he says, especially when he becomes excited. Part of the ex tempore reasons for Judgment of Lockhart J. given on 14 April 1982 where his Honour said "I have not found it entirely easy to grasp every point on which the applicant ([NAME]) relies but I have, I think, doing the best I can, grasped the essential points which have

been referred to in argument and which are set out in his

numerous affidavits filed in these proceedings, which themselves

state matters of fact, opinion and argwment" 1s apposite. [ADDRESS] as presently constituted experienced the same difficulties but is satisfied that it has grasped the argwments put by [NAME] which the Court did not limit even though the so-called notice of intention to oppose fails to conform with rvr.20 of the Bankruptcy Rules. To fully appreciate the difficulties the Court has had in this regard one only needs to

consider the so-called notice of intention to oppose which is set

out verbatim.

In the

FEDERAL COURT OF AUSTRALIA No.P 245 of 1983 [NAME] [NAME] Appellant of the "[NAME] WALES STRATA PLAN No. and the 3670"

[NAME]!

TAKE NOTICE that [NAME] [NAME], intends to deny the following statements in the petition of "THE PROPRIETORS STRATA PLAN No.3670" of the [NAME], dated 20th February

1983/presented 28th February 1983.

The [NAME] believe that this action as leed by the solicitors [NAME] & [NAME]/[NAME] is an III Action, with Intent, which is [NAME] as believed of Criminal natur, not only with [NAME] caused injuries to 'ny person and my family, but also to the [NAME] as a such and to make mockery of

the Court system of the State N.S.W. and the FEDERAL COURT OF AUSTRALIA.

On one side is a trained persn in the Law a solicitor and on other myself [NAME], who is not trained aparently in this Law and has not the proper knowledge of the English language.

This action is as a result of series of

actions that this same solicitors was involved and they describe them in their petition. But the results of that actions as described, can-not be counted to the [NAME] involved but contrary. Thanks to the solicitor involved.

This solicitor claim to appear on behalf of a NAME and THING. All way allong since he has started and this even in other actions since 1975. He has obtined from the Courts decissions, that [NAME] the NAME has appeared and is entitled to obtin COSTS.

I doo not to have to be a lawyer and too much skilled in English to read the relevant Act, in the State of New South Wales, the Strata Titles Act 1973 as amended, as follow;

Sec.5(1) Interpretation

Sec.54(1) Constitution

Sec.54(2)

Sec.54(3) DUTY Interpretation Act 1897 Sec.1l

Accordingly with the Interpretation Act as above, the sections of the Strata Titles have a substantive enactment and let made conclusion that it mean in other words nothing else that a NAME a THING. The amount of proprietors 1s unspecified but it is estimated that more than 900.000 proprietors in the State of New South Wales are afected by the especial benefit the Strata Titles for whose benefit a especial benefit have been passed.

[NAME] Solicitors disregard that above Law.

I doo not believe that he can have the power to act on behalf of the 900.000 persons, before any Court.

A PROPRIETOR wording is described providing [NAME] by the REAL PROPERTY ACT [POSTCODE](See Sec.6 Strata Titles)

[NAME] become a PROPRIETOR of a UNIT in STRATA TITLES SCHEME pursuant its own

decission in buying such UNIT from another PERSON in normal cirsc:mstances a member of

the particular STRATA SCHEME who dispose by such UNIT at his own DISCRETION, being not

binded as for example COMPANY TITLES UNITS (See Sec.54(2) Strata Titles).

In relation to the COMMON PROPERTY, for which reasons the Strata Titles is also created, the COMMON PROPERTY become registred in a separate CERTIFICATE of TITLES bearing the above [NAME].

Then also it may be said that the COMMON PROPERTY providing PART II* Strata Titles, THE LAND in STRATA SCHEME become freed of any encumbrance and if eventuely become subject to any order e.t.c. then acordingly by Apportionment of statutory charges Sec.151 Strata Titles,become freed of that charges and the Individual proprietors for their LOTS by its Unit Entitlements have to paid out that charges. This above is necessary to know, be cause it come obvious that I doo not owe to that LAND anything not a 'PENNY". And if I alledgedly will be owing something then not to [NAME],NOT TO THE LAND but to the individual proprietor under his NAME and not under NAME which [NAME] can not give being a THING its consent to use it.

And when the name used and in COURT action providing Sec.147 Strata Titles, and Sec.38(1)(c) Interpretation Act 1897 as

amended then the wording MAY must be at Discretion.

DISCRETION amy arrise when the [NAME]

becone the AGENT for the PROPRIETORS Sec.20(a) Strata Titles the SAME PERSON!

This involved [NAME] FOR THE PROPRIETORS 1s acording to schearches in the REGISTRAR - 29 LOTS* 20 PROPRIETORS of that 29 LOTS. Sec.20(b) STRATA TITLES!

Obviousely Sec.21 and Sec.24 Strata Tatles precisely indicate that without LOT and the obviousely DISCRETIONARY POWER of or over of

that LOT of the INDIVIDUAL, can not be dealt. with the COMMON PROPERTY.

[NAME] a COURT ACTION necessit a consent of the person t9 be the PLAINTIFF,which can-not be made vithout his consent! The Sec.73(5) Strata Titles aus significant. Please read 1t! see wording in relation to [NAME] in relation to the STRATA SCHEME.

It let conclude the sense of the Sec.73(5)

[NAME] include solicitors, barristers but

not the CROWN!

BODY 1s providing Sec.20(b) the OTHER BODY than the SAME PERSON. (Sec.20(a) Strata Titles-THE AGENT)

[NAME] is the NAME of the [NAME] itself.

THE LAND, is the LAND which is in the CERTIFICATE OF TITLE (that THING)

Evidently to preclude such SCHIZOFRENIC claim as the solicitor made in his actions.

THE [NAME] are performed by the proprietors for whose especial benefit the Act was made freeof charge pon each for another.

Except FEES in the Strata Titles REGULATIONS Part V.

THERE IS NO PROVISSION IN THE WHOLE STRATA TITLES ACT [POSTCODE] that a [NAME] has to or may for his performances charge the PROPRIETOR BY LEVIES ' Sec.68 Duties, Sec.59 Strata Titles LEVIES. Evidently hardly we can immagine that a repainting of the building will be undertaken by all proprietors in the sane time. For that reason there is in force a LAW, Sec. of the Law Sec.58 By-Law, Strata Titles.

Thus By-Laws are designed to obtin from all PROPRIETORS of each LOT by the [NAME] for ALL OF THEM and thier BENEFIT Sec.68 Strata Titles as the case may be the CONSENT by UNANIMOUS RESOLUTION to rpovide then vith the apropriate services

For example a LEGAL ADVICE can be such service. Then 1s apropriate pursuant Sec.58(7) Strata Titles to made a BY-LAW, which to be valid necessit proceedings as Sec.58(3) Strata Titles say.

The schearches shove that no registration of any By-Law, 1s registred in regards of any of this aspects in this proceedings-Actions. Once again this Solicitors try to obtin money, thru the [NAME] accounts on that body's corporate's Agents money, from its accounts. Thats a fraud on the [NAME]-Crimes Act 1900.

Lets reverse in immagination the court decission and make the Costs to be paid by the [NAME]-agent. Providing Sec.147 Strata Titles Involving ALL LOTS. A first mortgagee a big Company in finances perhaps the [COMPANY], providing Sec.59(6) Strata Titles is severaly and jointly liable with the PROPRIETOR. I think that they will be surprised that a SOLICITOR name [NAME] has

included them in any of the COURT actions without thier consent to be PLAINTIFF.

To explain how we come to this Court, we shall go back into 1980, where I have started as a (former)PROPRIETOR an action "CIVIL

CLAIMS" and as STRATA TITLES prescribe by Sec.62 and 150. For money that it shall be on the body corporates name account in the bank. Thus providing that the money was on providing Sec.68(1) (0) and can-not be disbursed providing Sec.68(2) Strata Titles. That money I have paid that accounts, be cause it was there as a result of illegal Action again by [NAME] in the name of [NAME], that I was the PROPRIETOR entered in the Strata Roll of the strata scheme [NAME]. In other words the solicitor has put also myself as a PLAINTIFF against myself as a DEFENDANT.

The Stipendiary Magistrate Involved was not redy to understand my claims. At latter date I did not comme to thehearing being far-away sick the solicitor has forced decission for costs against my. Then when I have asked to be PUT THE MATTER ASSIDE, Solicitor [COUNSEL] has applied for the so called SECURITY FOR COSTS again on behalf of [NAME]. Then I have decided that will be matter for Supreme Court to decide. I submit providing the JUSTICES ACT the decission of the Stipendiary Magistrate before Supreme Court. The matter come before the [NAME] few times for MENTION.But one day [NAME] and his Barrister has find [NAME]. Justice D.HUNT, who

take the matter before him for hearing under promise that he will be redy vith myself in few minutes.

It was not few minutes, I have desperatly defended myself being not prepared, thought to be again for mention to set the time for hearing.

The order of [NAME] was as can be read from it, that he dismis my application and that I have t®% pay costs any costs that arrise to the alledged defendant (it was the second defendant for the Stipendiary magistrate has appeared the CROWN SOLICITOR who did not aply for Costs and has asked to be excused from the proceedings.

[NAME], decaission did not

merrit from my side to folow furtherly as I have believed.

10.

But the Solicitor has put in the NAME of [NAME],his expenses for TAXING. He claim ainter-allia to speak with his CLIENT [NAME] G?

Then he submited vithout warning myself again in the name of [NAME] before [NAME]. There the BARRISTER involved has even find a precedent relating to a COMPANY making comparission with this THING-name.

His [NAME] was 'ore cautious in his decission he has adjourned the BANKRUPTCY NOTICE indefinetely. But made mention that it should be aplied for COSTS. Myself being not LAWYER I have find the way to object to his decission by way to APPEAL BEFORE FULL FEDERALL COURT. THE FULL FEDERAL COURT has dismissed my appeal but clearly has distances itself to make decission in relation to the N.S.W. Law the Strata Titles Act 1973.

As it can be read from the decission, the question of COSTS is more informative and traditional, than commit itself the COURT to make decission in relation to the ACT of a State which they have respected in not touching any of its aspects, of the Law in concern.

Now on, there is again a SCHYSOFRENIC CLAIM by the solicitor and its acomplices in the Action;

Solicitors [NAME] & [NAME]. [COMPANY]. [COMPANY], claiming to be appointed by [NAME] as mannaging agent Sec.78 Strata Titles. '

Thier officers of V.[COMPANY]. [NAME] [NAME]

Mrs [NAME].E. [NAME]

[NAME] [NAME].[NAME].[NAME] and [NAME].[NAME].[NAME].

[NAME] [NAME]. [NAME] secretary of the [NAME] the only PROPRIETOR of the Lot in [NAME] involved directly in this matter.

I believe that this Court have understand ny claims and will dismis the PETITION on the GROUNDS that it is a ILL minded = and conscieved in misconstructing the LETTER OF

LAW relevant STRATA TITLES ACT [POSTCODE] as amended.

I believe that the Costs will be made in ny favour, and if this Court has the power, will award my the all costs all way in this matter in concern.

I let the COURT Immagine how far the CONTEMPT o£ COURT by the persons involved by thier

ll.

participation to this III action I may mention that I have informed them by letter, whats they are dooing wrong.

Being myself not a lawyer I doo not know 1f this Court has the power to award my DAMAGES oecured to my by this action putting ny into the shame of BANKRUPTCY. Im [NAME] a co-owner of property where I live a property which is estimate value at this date is between 100.000 and 130.000 dollars. It is mortgaged by les than one quarter of its estimated sale value. I manage affairs not THE BANKRUPTEER'S WAY as the HUNGRY for $1.600.

Inflationary moneys, try to sugest that Im going such way. If this Court has the power to award the DAMAGES I aply for them. I believe that this Court will take the oportunity to demonstrate thier stand from the mockery made from the also previous COURTS that this solicitors have made, as evidently in relation to the LETTER OF LAW, did it.

There was not in the proceedings before, any respect for "MAGNA CARTA" by this solicitors.

This Notice is filled by myself [NAME] ([NAME]) im not practicissing the FURRIER profession for many years.

whose adress for service 1s;

[ADDRESS],Sydney N.S.W. 2010 Telefon; 211 53 20

After noting the [NAME]'s objections to the said notice opposing the petition, the Court called on the judgment [NAME] to present argument in support of his %pposition. This he did between 12.15 p.m. and 3.35 p.m. (excluding 1 hour for lunch). A large part of this time was taken up by detailed references by him to numerous sections of the Strata Titles Act, 1973 (N.S.W.) and the Interoretation Act 1897 (N.S.W.). During this time the Court drew [NAME]'s attention to s.52(2)(a) of the Bankruptcy Act. It is noted that the [ADDRESS] in its

Judgment delivered 27 October 1982 had stated that "we make it

12.

clear that nothing we have said affects the appellant's ([NAME]'s) right to avoid the consequences of the act of bankruptcy he has committed by establishing at the hearing of any petition presented against him that he is able to pay his debts." At the conclusion of his arguments the Court invited [NAME] to present any evidence he wished to place before the Court in respect of any matter. No evidence was given by [NAME] or anyone on his behalf in the present proceeedings.

Further, [NAME] in the present proceedings again Gisputed the retainer of the [NAME]'s solicitor. Similar challenges were made by him at the hearing of the proceedings in the Supreme Court 9%f New South Wales, before Lockhart J. and before the [ADDRESS]. As was the case in the earlier hearings any question of fact involved in connection with the retainer of the [NAME]'s legal representatives produced no more than assertions which, to say the least, were

unproven and afforded no support for such a challenge.

At the conclusion of [NAME]'s arguments it was clear to the Court that there was no evidence before the Court

that he was able to pay his debts (cf. Re [NAME]; Ex parte

Council of The Shire of Wollondilly, 43 FLR 163; [NAME] -v-

Council of The Shire of Wollondilly, 48 FLR 372). Further, [NAME] had failed to satisfy the Court that there was any ground

which prevented the Court from hearing and determining the

petition herein. The matters raised in the notice set out above

13.

in respect of matters which had already been determined by the

Court are matters which should not be re-opened in this

proceeding and those determinations are binding as between the parties. Nothing was put to the Court as presently constituted

which would permit a disturbance of such determinations.

Likewise, [NAME] has failed in his attempt to show that the Supreme Court of New South Wales was in error in dismissing his application against the [NAME] and awarding the [NAME] its costs in those proceedings. Accordingly the Court so ruled indicating that it would publish its reasons in

this regard later.

Thereafter the Court proceeded with the hearing of the [NAME]'s petition in the usual way. During such hearing [NAME] objected to the tender of the minutes of the meeting of the Council of [NAME] held on 15 June 1982 and the Strata Managing Agent's Agreement dated 1 July 1982 made between [NAME] and [COMPANY]. Such objections were overruled. Paragraph 4 of the petition as filed was amended substituting "27 October 1982" for "10 November 1982" appearing therein. Service of the petition so amended was dispensed with. This amendment was to conform with the provisions of $.41(7) of the Act, 27 October 1982 being the date when the [ADDRESS] determined that the Court was not satisfied that [NAME] had a counter-claim set-off or cross demand equal to or exceeding the sum specified in the

bankruptcy notice. -

14.

Being satisfied that [NAME] had committed the act ef bankruptcy as alleged in the petition as amended and with the proof of the other matters of which s.52(1) of the Act requires proof, the Court on 18 May 1983 made a sequestration order against the estate of [NAME] and ordered that the [NAME]'s costs including reserved costs be paid in accordance

with the Act.