American Express Australia Limited v Kerr

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AMERICAN EXPRESS AUSTRALIA LIMITED v KERR [2008] FMCA 916

BANKRUPTCY – Bankruptcy petition – adjourned to allow debtor to investigate and properly present her evidence and to set aside judgment debt.

Bankruptcy Act 1966 (Cth), s.52(2)(b)

Adamopoulos v Olympic Airways SA & Anor (1990) 95 ALR 525

Applicant: AMERICAN EXPRESS AUSTRALIA LIMITED (ACN 108 952 058)

Respondent: JOYE MAREE KERR

File Number: SYG 642 of 2008

Judgment of: Smith FM

Hearing date: 24 June 2008

Delivered at: Sydney

Delivered on: 24 June 2008

REPRESENTATION

Counsel for the Applicant: Ms J Foley

Solicitors for the Applicant: Kemp Strang

Representing the Respondent: Mr I Kerr (with leave of the Court)

ORDERS

1. The petition is adjourned for hearing on 21 August 2008 at 10.15 am. 

2. The respondent debtor must file and serve all additional affidavits relied upon, and an outline of her submissions no later than 11 August 2008. 

3. The applicant creditor must file and serve any additional affidavits relied upon and an outline of its submissions no later than 4 pm on 19 August 2008. 

4. The respondent’s notice to produce dated 6 June 2008 is stood over to the Registrar’s list on 16 July 2008 at 9.30 am. Any additional subpoenas may be made returnable at that time.

5. Costs reserved. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 642 of 2008

AMERICAN EXPRESS AUSTRALIA LIMITED

(ACN 108 952 058)

Applicant

And

JOYE MAREE KERR

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This creditor’s petition was filed on 17 March 2008, and relies on a judgment debt in the District Court entered on 11 October 2007 in the sum of $116,699.33. Non‑compliance with a bankruptcy notice based on that judgment occurred on 28 November 2007.

2. The petition has been adjourned three times. The first adjournment was to gain orders for substituted service. The further adjournments occurred by consent, because both parties wished to file evidence and obtain documents relating to grounds of objection raised by the respondent debtor, Mrs Kerr. The outstanding processes include service by Mrs Kerr on the applicant creditor, ‘AMEX’, of a notice to produce to which I shall refer below.

3. Mrs Kerr has been represented by her husband, who has prepared her notice of opposition. This and numerous affidavits and written outlines of submission are confusingly and repetitiously presented. They raise a whole variety of grounds for opposing the petition, including reference to Mrs Kerr’s ability to pay the debt from equity in their home, the prospect of obtaining further assets through pending litigation in Queensland, some of which are said to have a further listing in July, and other grounds based on the conduct of AMEX in relation to the debt.

4. The judgment debt appears to have been entered by default, pursuant to leave given at the time that a settlement was noted by the District Court.  This provided for a schedule of payments pursuant to a deed of settlement.  It appears that there was default under the schedule of payments, and that…