Gradara v Bolt [2000] FCA 1439 (25 September 2000)

Last Updated: 16 October 2000

FEDERAL COURT OF AUSTRALIA

Gradara v Bolt [2000] FCA 1439

BANKRUPTCY - application to set aside sequestration order

Bankruptcy Act 1966 (Cth) s 153B

Gradara v Bolt [1999] FCA 1638 mentioned

TARCISO GRADARA V WENDY BOLT AND SHARNEY BYRNE

NO. V 7363 OF 2000

HEEREY J

25 SEPTEMBER 2000

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 7363 of 2000

BETWEEN:	TARCISIO GRADARA APPLICANT
AND:	WENDY BOLT FIRST RESPONDENT SHARNEY BYRNE SECOND RESPONDENT
JUDGE:	HEEREY J
DATE OF ORDER:	25 SEPTEMBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondents' costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 7363 OF 2000

BETWEEN:	TARCISIO GRADARA APPLICANT
AND:	WENDY BOLT FIRST RESPONDENT SHARNEY BYRNE SECOND RESPONDENT

JUDGE:	HEEREY J
DATE:	25 SEPTEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The applicant applies to set aside a sequestration order which was made by Finkelstein J on 26 April 1999. The application is made under s 153B of the Bankruptcy Act 1966 (Cth) which provides:

"If the Court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor's petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the Court may make an order annulling the bankruptcy."

2 In support of the application, the applicant on 20 July 2000 swore an affidavit as follows:

"I, UNDER THE SECTION 153B ANNULMENT OF BANKRUPTCY, THE APPLICANT WILL, SATISFIED THE COURT, THAT A SEQUESTRATION ORDER OUGHT NOT TO HAVE BEEN MADE NEVER, BECOUSE THE EVIDENCE WAS NEVER SEE BY THE FEDERAL COURT ONLY PURJURY LIE, FROM HERBERT GEER & RUNDLE SOLICITOR LAM, NOLAN, AND DINO DE MARCHI.

IN THE HIGH COURT OF AUSTRALIA DATE 26-MY-2000 WITH THIS EVIDENCE IN COURT THE HONOREBLE JUSTICE HAYNE EXPRESS NO CONCLUSION THAT HERBERT GEER & RUNDLE ARE ENTITLE FOR COST, AND SCOULD NOT, HAVE THE COURT ORDER FOR COST. REFERENCE WAS MADE TO THE ACT OF THE PARLIAMENT. JUSTICE CALLINAN AGREE WITH JUSTICE HAYNE!!!

THE APPLICANT ATTACH TO THIS AFFIDAVIT: THE HIGH COURT APPLICATION BOOK FOR EVIDENCE, AND TRASCRIPT PROCEEDING PAGE 8, LINE FROM 285 TO 300 LINE.

(1) JUDGES NEVER COMPLY WITH GRADAR'S SUBPOENA JUDGE NORTH NO DOCUMENT ARE IN CUSTODY OF COURT!

(2) JUDGE BRANSON STATE THE MONEY WAS PAY BACK TO LEGAL AID, DOCUMENT PROVE NOT TRUE!

(3) JUDGE FLINKELSTAIN STATE: THAT WENDY BOLT WAS WORK AS TELLAR. FALSE! THE APPLICANT SPOKE TO THE JUNG TELLAR 1997 SHE TOLD ME THAT WENDY BOLT AS STAFF, SHE BECAME OUR MANAGER AND SHE REMEMBER CHEQUE OF 13-AG-1984 WAS NOT NEGOTIABLE SHE TOLD TO DE MARCHI YOU INVALIDATE THE CHEQUE BECOUSE ONLY, THE TELLAR CAN ADDRESS TO THE PYEE TO SIGN WITH THE BIRO, AND NOT, WITH YOUR FOUNTAIN PEN, DE MARCHI I HAVE TO DO MY DUTY TO PROTECT THE BANK, AND THIS IS NOT THE USUALY PRESIDIGIA ACCORDING OF BANKING & CHEQUE LAW BOOK OF NICOLSON. I WILL NOT PY YOU! THEN DE MARCHI TOLD ME TO GO TO THE MANAGER BECOUSE THE DAY BEFORE PHONE DE MARCHI TO THE MANAGER & WENDY BOLT. ALSO I DID NOT WRITE IN WHAT DENOMINATION THE MONEY BE PY, WENDY BOLT HAD PREPER THE MONEY IN THE BAG, AND GIVE TO DE MARCHI. I WRIT ON THE BACK OF THE CHEQUE PHONED C/C WENDY BOLT.

(4) REVISIT, OR I WENT BACK TO THE BANK TO ISSUE A SUBPOENA TO THE MANGAGER WENDY BOLT, BUT THE APPLICANT FIND ANOTHER NEW MANAGER BOB TAYLOR AND HE TOLD ME SHE DO NOT WORK ENYMORE HERE. HIS PHONE IS [phone] AT THE BANK IN BRUNSWICK VIC.

(5) I, ACCUSE AT THE FEDERAL POLICE THAT HERBERT GEER & RUNDLE SOLICITOR NOLAN, LAM: FOR PERJURY, LIE, THIEF. I WORN JUDGE PAWER IN THE HAND OF SOLICITOR LAM THE CHEQUE SHE WILL MAKE DISAPER GEST IN TIME I SAID TO JUDGE PAWER SHE HAVE THE CHEQUE: I WILL NOT GO AWAY OF THIS COURT SHE MUST GIVE TO YOR HONAR, SHE SHOW THE CHEQUE AND PUT BACK IN HER BAG I COMPLY TO THE REGISTRAR BUT SHE TAKE OUT OF THE COURT THIS EVIDENCE AND POLICE HAVE NO MONEY FOR ENQUARY."

3 The genesis of this matter is a dispute which arose over the cashing of a cheque for $13,500 at a branch of the State Bank of Victoria on 13 August 1984. The cheque was drawn on the account of the applicant's then solicitor, Mr Dino De Marchi, in favour of the applicant. Mr De Marchi and the applicant went to the bank. According to Mr De Marchi, this was because the applicant requested payment of the amount in cash. The cheque was cashed. According to Mr De Marchi, the whole amount of $13,500 was then and there paid in cash to the applicant. According to the applicant, he only received $10,000.

4 The applicant then sued Mr De Marchi in the Magistrates' Court at Melbourne. He claimed that Mr De Marchi stole the $3500 from him by a trick, and in the course of this crime perpetrated various forgeries. The case was heard by Magistrate Robert Tuppen. On 11 October 1990 Mr Tuppen gave a detailed written judgment in which he rejected the applicant's claim. He dismissed the claim and ordered that the applicant pay Mr De Marchi's costs, fixed at $4162.

5 In the welter of litigation in connection with this matter there has not been, as far as I can see, any appeal or application for review by the applicant against Mr Tuppen's decision. The applicant did, however, repeat his complaint to the Victoria Police who charged Mr De Marchi with a number of offences. Those charges were either dismissed or withdrawn.

6 The applicant then turned his attention to the present petitioning creditors. Ms Bolt was a teller at the branch where the cheque was cashed and Mr Byrne was the manager. The applicant commenced proceedings in the Federal Court against Ms Bolt and Mr Byrne alleging a criminal conspiracy contrary to the Crimes Act 1914 (Cth). On 1 August 1987 that proceeding was dismissed on the ground that no reasonable cause of action was disclosed. An appeal to the Full Court was also dismissed with costs. Those costs were taxed in the amount of $6906. It is the order for those costs which founded the bankruptcy petition.

7 When the petition came on for hearing before Finkelstein J the applicant opposed it by relying on the merits of his claim against Mr De Marchi. In substance, Finkelstein J held that no case had been made out for going behind the judgment. An appeal to the Full Court against the sequestration order was dismissed on 11 November 1999: Gradara v Bolt [1999] FCA 1638.

8 The applicant sought special leave to appeal to the High Court against that decision. That application was heard before Hayne and Callinan JJ on 26 May 2000. A transcript of that hearing was in evidence. It is apparent that again the applicant relied on matters concerning the merits of the original claim. The application for special leave was dismissed.

9 In the application before me today the applicant again sought to rehearse his original grievance. He made many allegations of perjury and the like against other parties concerned with the matter.

10 There is, in my opinion, no reason why the sequestration ought not to have been made.

11 In a passage which was endorsed by the Full Court Finkelstein J said:

"Whether Mr Gradara has suffered any injustice at the hands of his former solicitor is not for me to say, save to observe that other courts have taken the view that he has not. What is important for present purposes is that Mr Gradara has suffered no injustice by reason of the conduct of the petitioning creditors in this court and the proceedings that led to the making of the costs order. In relation to those proceedings, the petitioning creditors acted within their rights when they successfully obtained a dismissal of the claim brought against them. When he appealed that decision Mr Gradara assumed the risk of having an order for costs made against him in the event that his appeal was unsuccessful. He was undoubtedly aware of that risk.

I accept that Mr Gradara considers, and has always considered, that he has a good claim against the petitioning creditors and that it was wrong that his claim against them was dismissed without a hearing on the merits, but that is really beside the point. The incontrovertible fact here is that the proceeding that Mr Gradara brought against the petitioning creditors in this court was bound to fail, as was his appeal to the Full Court. There is no injustice in allowing petitioning creditors to base and prosecute their petition on costs order regularly made."

12 I respectfully agree and I can only add that since the case that the applicant has sought to make out for annulling the sequestration order depends mainly on the merits of his original claim against Mr De Marchi, still less should the Court be prepared to set aside the sequestration order. The essence of that dispute has been resolved after a contested hearing before a court of competent jurisdiction. Moreover, it was a matter to which the petitioning creditors were not parties.

13 The application will be dismissed. There will be an order that the applicant pay the respondents' costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated: 13 October 2000

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondents:	Mr M McNamara
Solicitor for the Respondents:	Herbert Geer and Rundle
Date of Hearing:	25 September 2000
Date of Judgment:	25 September 2000