Autron Pty Ltd v Benk

[2010] FMCA 784

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AUTRON PTY LTD v BENK [2010] FMCA 784

BANKRUPTCY – Bankruptcy Notice including interest not part of Court order – can interest up to the date of the Notice be included so as to exceed $2,000.00 limit? – consideration of whether interest pursuant to statute is part of the judgment debt.

Bankruptcy Act 1966, ss.41, 52(1)
Magistrates Court Act 1989 (Vic), s.101(7)

Re Henry Wilson (1877) 3 VLR 96
Re Merrington (1929) 2 ABC 154
Re Mullavey [1977] FCA 17
Re Manion (1979) 23 ALR 270

Applicant: AUTRON PTY LTD (A.C.N. 007 324 110)

Respondent: MICHAEL GARY BENK

File Number: MLG 1676 of 2009

Judgment of: Burchardt FM

Hearing date: 23 September 2010

Date of Last Submission: 6 October 2010

Delivered at: Melbourne

Delivered on: 7 October 2010

REPRESENTATION

Counsel for the Applicant: Mr K. Baker

Solicitors for the Applicant: Macpherson & Kelley

The Respondent: In person

ORDERS

1. The application for review filed 26 August 2010 be dismissed.

2. The Applicant pay the Respondent’s costs to be taxed in default of agreement.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 1676 of 2009

AUTRON PTY LTD (A.C.N. 007 324 110)

Applicant

And

MICHAEL GARY BENK

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This is the creditor’s application for review of a decision of Registrar Pringle given on 6 August 2010.  It is, of course, a hearing de novo.  The facts in my view are largely clear from the materials filed and the summary I will now give is largely taken from the decision of Registrar Pringle which has been reduced to writing and, of course, has given rise to this application. 

2. On 4 March 2009, the creditor obtained judgment in the Magistrates Court of Victoria for $1,598.44.  The actual debt was only $990; the remainder being made up of costs and interest up to judgment.  The respondent debtor says that the amount should not have been anything in excess of $660 in any event. 

3. On 12 October 2009 an application for rehearing lodged by the debtor was dismissed by Braun J and a further $381 costs were ordered in respect of that failed application.  When the bankruptcy notice that gave rise to these proceedings was issued on 18 November 2009, the sum of interest of $110.80 was also relied upon.  That was interest up to the date of the issue of the notice. 

4. The bankruptcy notice was not complied with and a petition was presented on 23 December 2009.  An order for substituted service was ultimately made on 23 March 2010.  On 6 August 2010, Registrar Pringle heard the matter.  The Registrar dismissed the petition as the bankruptcy notice was not based, as the Registrar found it, on a final judgment or order for an amount of at least $2,000.  Registrar Pringle concluded that while post-judgment interest can be relied on to ground a debt upon which a petition is presented, it cannot be relied on to exceed the $2,000 judgment or final order for…