FEDERAL COURT OF AUSTRALIA
Troiani v Peldan & Lane (Trustee), in the matter of Troiani (Bankrupts)
[2005] FCA 842
SANTE TROIANI AND RITA TROIANI v PELDAN AND LANE AS TRUSTEE IN BANKRUPTCY OF SANTE AND RITA TROIANI
QUD 145 OF 2004
DOWSETT J
1 JUNE 2005
BRISBANE
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
QUEENSLAND DISTRICT REGISTRY |
QUD 145 OF 2004 |
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
|
BETWEEN: |
SANTE TROIANI FIRST APPELLANT
RITA TROIANI SECOND APPELLANT
|
|
AND: |
PELDAN AND LANE AS TRUSTEE IN BANKRUPTCY OF SANTE AND RITA TROIANI RESPONDENT
|
|
DOWSETT J |
|
|
DATE OF ORDER: |
1 JUNE 2005 |
|
WHERE MADE: |
BRISBANE |
THE COURT ORDERS THAT:
1. The appeal be dismissed
2. The appellants pay the respondent’s costs of the appeal, including reserve costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA |
|
|
QUEENSLAND DISTRICT REGISTRY |
QUD 145 OF 2004 |
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
|
BETWEEN: |
SANTE TROIANI FIRST APPELLANT
RITA TROIANI SECOND APPELLANT
|
|
AND: |
PELDAN AND LANE as Trustee in Bankruptcy of SANTE AND RITA TROIANI RESPONDENT
|
|
JUDGE: |
DOWSETT J |
|
DATE: |
1 JUNE 2005 |
|
PLACE: |
BRISBANE |
REASONS FOR JUDGMENT
1 As I have observed, the decision under appeal is a decision pursuant to s 146 of the Bankruptcy Act. It was a decision in exercise of a discretion. The reasons for making the order appear in all respects to be entirely orthodox. The appellants failed to file statements of affairs. An application was made under s 146 of the Bankruptcy Act 1966 (Cth). In the circumstances I cannot see that there was any miscarriage of the discretion in making the appropriate order.
2 The only basis upon which the appellants seek to challenge the decision is the assertion, which they have been making for many years, that they were not indebted to the bank at the relevant time and that therefore judgment ought not have gone against them in the Supreme Court, the bankruptcy notice ought to have been set aside and the sequestration orders ought never to have been made. They say that the bank has been fraudulent and that they have only now come to understand either the nature or the extent of such fraud. As I have already observed in connection with the application for an adjournment, it seems that there has been more than adequate opportunity to raise all relevant issues. An allegation of fraud of some sort was made against the bank, at the very latest, in the Court of Appeal in 2002, following the judgment of the Chief Justice in 2001. In those circumstances, it cannot be credited that there is now a new and viable allegation of fraud by the bank, leading to a loss of $4 million. I can come to no conclusion except that, once again, these proceedings are being used as a method of delay, for what reason, I do not know.
3 No viable ground of appeal is advanced, and the appeal must be dismissed.
|
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett . |
Associate:
Dated: 22 June 2005
|
Counsel for the Appellants: |
The appellants appeared in person. |
|
|
|
|
Counsel for the Respondent: |
Ms C Muir |
|
|
|
|
Solicitor for the Respondent: |
Mallesons Stephen Jaques |
|
|
|
|
Date of Hearing: |
1 June 2005 |
|
|
|
|
Date of Judgment: |
1 June 2005 |
