Amos v Brisbane TV Ltd

[2000] FCA 825

FEDERAL COURT OF AUSTRALIA

Amos v Brisbane TV Ltd [2000] FCA 825

BANKRUPTCY - whether discretion to set aside bankruptcy on debtor’s solvency - whether non-compliance with Rules of the Court in which the judgment was given invalidates the bankruptcy notice founded on judgment.

Bankruptcy Act 1966 (Cth) s 30 and s 40(1)(g)

Re Athans; Ex parte Athans (1991) 29 FCR 302 cited
Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation (WA) (1986) 12 FCR 310 cited
Re Hutchins; Ex parte Wall (Spender J, unreported, 6 May 1998) referred to
Re Stubberfield; Ex parte Paradise Grove Pty Ltd (1994) 134 ALR 169 followed
Zantiotis v Andrew (1987) 80 ALR 23 referred to
Re Lamb; Ex parte Melsom (1980) 42 FLR 399 cited
Re Dingle; Westpac Banking Corporation v Worrell (1993) 119 ALR 265 referred to
Re Gibbs; Ex parte Triscott (1995) 65 FCR 80 referred to
Re Skaff; Ex parte Farrow Mortgage Services Pty Ltd (1993) 41 FCR 331 referred to
Re Ferguson; Ex parte EN Thorne & Co Pty Ltd (1969) 14 FLR 311 referred to
McIntosh v Shashoua (1931) 46 CLR 494 referred to

EDWARD AMOS v BRISBANE TV LIMITED
Q 7321 OF 1999

DRUMMOND J
19 JUNE 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 7321 OF 1999

BETWEEN:	EDWARD AMOS APPLICANT
AND:	BRISBANE TV LIMITED RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	19 JUNE 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application be dismissed with costs, including reserved 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	Q 7321 OF 1999

BETWEEN:	EDWARD AMOS APPLICANT
AND:	BRISBANE TV LIMITED RESPONDENT

JUDGE:	DRUMMOND J
DATE:	19 JUNE 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. Mr Edward Amos applies to set aside a bankruptcy notice served on him.  The notice is based upon an order of the Supreme Court that he pay the creditor’s costs of an action which he brought against the creditor in the Supreme Court; the taxing officer has certified that these costs “have been allowed in the sum of $50,000 pursuant to the settlement agreement between the parties a copy of which is attached to the certificate”.

2. Mr Amos asks that the bankruptcy notice be set aside on a number of grounds.  He alleges the settlement agreement the subject of the taxing officer’s certificate, though signed by him on 23 March 1998, was procured by the legal representatives of the creditor fraudulently misrepresenting that his own solicitor had approved the settlement deed and by also misrepresenting that the deed incorporated the parties’ earlier oral agreement when they gave it to him for his signature.  Secondly, Mr Amos relies upon a number of what I will call technical deficiencies in the notice.  Finally, he asserts that the notice should be set aside because he is solvent.

3. As to the first ground, an oral settlement later reduced to writing was arrived…