Batterham v Makeig

In Batterham v Makeig, the applicant, Brian Joseph Batterham, sought to set aside a bankruptcy notice served on him. The respondent, Peter John Makeig, opposed the application. The case was heard in the Federal Court of Australia, specifically the New South Wales District Registry of the General Division. The legal issues that the court needed to decide were whether the application to set aside the bankruptcy notice was made within the required time and if the application complied with the necessary procedural requirements, particularly concerning the date of service of the bankruptcy notice.

The court found that while the application to set aside the bankruptcy notice was made within the time required by the Bankruptcy Act, it did not comply with rule 3.02 of the Federal Court (Bankruptcy) Rules 2005. This rule necessitates that an affidavit accompanying an application to set aside a bankruptcy notice must state the date when the notice was served on the applicant. The affidavit filed in this case did not explicitly mention the date of service, and although there was a reference to service in an annexure, it did not conclusively state the exact date of service. Consequently, the court dismissed the application to set aside the bankruptcy notice and ruled that there should be no order as to costs, considering the technical nature of the defect in the application.

In summary, the court dismissed the application to set aside the bankruptcy notice and ruled against making an order for costs. The dismissal was due to the failure of the application to meet the procedural requirement of stating the exact date of service of the bankruptcy notice, as mandated by rule 3.02 of the Federal Court (Bankruptcy) Rules 2005.