Schwarcz v Owners of Strata Plan No 7663 [2005] FCA 899 (22 June 2005)

Last Updated: 30 June 2005

FEDERAL COURT OF AUSTRALIA

Schwarcz v Owners of Strata Plan No 7663 [2005] FCA 899

SCHWARCZ v OWNERS OF STRATA PLAN No 7663


NSD 735 of 2005





BRANSON J
22 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 735 of 2005

BETWEEN:	ANDY ITSHAK SCHWARCZ APPLICANT
AND:	OWNERS OF STRATA PLAN No 7663 RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	22 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The application for leave to appeal be dismissed.
2.	The respondent’s costs of today’s attendance be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).
3.	There otherwise be no order in respect of the costs of the application.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 735 of 2005

BETWEEN:	ANDY ITSHAK SCHWARCZ APPLICANT
AND:	OWNERS OF STRATA PLAN No 7663 RESPONDENT

JUDGE:	BRANSON J
DATE:	22 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 I have before me an application for leave to appeal from a judgment of the Federal Magistrates Court delivered by Raphael FM on 21 April 2005.

2 The history of the application is that a sequestration order in respect of the estate of the applicant was made in the Federal Magistrates Court in Tasmania by a Registrar. The applicant sought review of the decision of the Registrar. The matter came before Raphael FM in Sydney. His Honour allowed time for the applicant to place evidence before the court, including evidence to establish his solvency.

3 When the matter next came before Raphael FM there was no evidence before his Honour touching on the applicant's solvency. On this occasion, Mr Palmer, a legal practitioner, appeared for the applicant. After some discussion and an adjournment consent orders were offered to the Federal Magistrate dismissing the application for review of the sequestration order that had earlier been made in Tasmania.

4 Subsequently the applicant applied to have the consent orders set aside. Raphael FM refused the application. His Honour was satisfied that the applicant had instructed Mr Palmer to act on his behalf and to sign the consent orders and that the applicant was not misled when he gave those instructions. It is the judgment of the Federal Magistrates Court dismissing the applicant’s application to have the consent orders set aside that is the subject of the present application.

5 Today the applicant has stressed three matters in particular. First, that he signed no document appointing Mr Palmer to act for him. Secondly, that he was not told by Mr Palmer that orders made by consent would be difficult to appeal against. Thirdly, that he was not told of the additional costs that he might have to pay. In this respect I understand the applicant to refer to costs of the administration of his bankrupt estate.

6 The principal test for me to apply on this application is whether the decision of Raphael FM not to set aside the consent orders is attended by sufficient doubt that it should be subject to appellate review. In the circumstances I am not so persuaded.

7 In my view no significance attaches to the fact that the applicant did not sign a document appointing Mr Palmer as his representative for the hearing in front of Raphael FM. Nor do I think it significant that the applicant was not told that an order made by consent is difficult to appeal from.

8 Raphael FM heard evidence on the issue of whether the consent orders were made under a mistake in the sense that the applicant did not understand what it was that he was consenting to (Wilkshire v Commonwealth of Australia (1976) 9 ALR 325 at 330). His Honour concluded that the applicant had not been misled when he authorised Mr Palmer to consent to the making of the consent orders.

9 In my view, the applicant has not shown that there is any reason to doubt the correctness of his Honour’s conclusion. Appellate review of the interlocutory judgment of the Federal Magistrates Court is thus unwarranted.

10 The application is dismissed. The respondent’s cost of today’s attendance are to be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 30 June 2005

The Applicant appeared in person
Advocate for the Respondent:	D Radman
Solicitor for the Respondent:	Somerville & Co.
Date of Hearing:	22 June 2005
Date of Judgment:	22 June 2005