ATIA v NUSBAUM

[2011] FMCA 639

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ATIA v NUSBAUM [2011] FMCA 639

BANKRUPTCY – Application to set aside bankruptcy notice – abuse of process – abuse of process not made out.

Hubner v ANZ Banking Group Limited [1998] FCA 1779
Re Hutchings (A Applicant); Ex parte Wall (unrep., Federal Court of Australia, Spender J, 6 May, 1998)
Lord v Rankine (2010) FMCA 668

Applicant: AARON ATIA

Respondent: VIOLET NUSBAUM

File Number: BRG 654 of 2011

Judgment of: Jarrett FM

Hearing date: 4 August 2011

Date of Last Submission: 4 August 2011

Delivered at: Brisbane

Delivered on: 4 August 2011

REPRESENTATION

Counsel for the Applicant: Mr S. Grant

Solicitors for the Applicant: Adamson Bernays Kyle & Jones

Counsel for the Respondent: Mr P.P. McQuade with Mr C. Crawford

Solicitors for the Respondent: Merthyr Law

ORDERS

1. All outstanding applications be dismissed.

2. The applicant pay the respondents costs of and incidental to these proceedings to be assessed according the Federal Magistrates Court Bankruptcy Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 654 of 2011

AARON ATIA

Applicant

And

VIOLET NUSBAUM

Respondent

REASONS FOR JUDGMENT

1. The applicant in this case owns property at Kilkenny Court, on the Gold Coast.  There has been a long history of litigation between the parties arising out of loans made by the respondent, his mother, to the applicant and secured by mortgage over the Kilkenny Court property. 

2. The useful chronology handed up in the course of argument, in respect of which no issue was taken, demonstrates that in June 2009, the respondent issued a notice of exercise of power of sale pursuant to her mortgage over the Kilkenny Court property.  That prompted Supreme Court proceedings by the applicant wherein he sought relief against that action.  There was a counterclaim by the respondent in respect of the loan she alleged was made by her to him.

3. By and by, the proceedings were tried and judgment was given for the respondent against the applicant.  The evidence establishes that the present amount of debt, including post-judgment interest, is a little more than $1.2 million. 

4. On 7 July this year, the respondent served a bankruptcy notice on the applicant.  That bankruptcy notice relies upon the judgment to which I have just referred.  By this application, the applicant seeks to set aside the bankruptcy notice.  He also seeks that time for compliance with the bankruptcy notice be extended to enable this application to be heard.  It seems that relief is not necessary.

5. Alternatively, he seeks an extension of time within which to comply with the bankruptcy notice until seven days after final determination of a certain appeal in the Supreme Court proceedings that led to the judgment.  In the further alternative, he seeks an extension of time to comply with the bankruptcy notice until seven days after the determination of an application for a stay of the Supreme Court judgment, to which I have earlier referred. 

6. As to the further alternative relief, the stay application has been dealt with and refused.  The further…