Bhattacharya v Berger

[1999] FCA 883

FEDERAL COURT OF AUSTRALIA

Bhattacharya v Berger [1999] FCA 883

BANKRUPTCY – application to set aside a bankruptcy notice on the single ground that the debtor had "a counter claim or cross claim" against the creditors – several other grounds claimed in the affidavits supporting the application – further claims made in submissions including that the creditor was liable in tort and for breaches of contract and statutory duty – chronological history of debtor’s legal actions demonstrating that allegations not made prior to the issue of the bankruptcy notice and previously made against others – whether costs orders can be final orders – whether Costs Assessor's determination in the Certificate of Costs is reviewable

Bankruptcy Act 1966 (Cth) ss 40(1)(g), 41(7)
Legal Profession Act 1987 (NSW) ss 57B, 193(1), 208, 208(1), 208A(1), 208J(3), 208L
Legal Profession Act 1987 -Regulation No. 173 of 1995 (NSW), s 22A(1)(h)
Legal Profession Act 1987 - Rules No. 561 of 1995 (NSW)

Re Gibbs ex parte Triscott [1995] 65 FCR 80, followed
Re McAlister; Ex parte McAlister, Moore [1936] 8 ABC 283, followed

PRANAY KUMAR BHATTACHARYA V VICTOR BERGER & HARRY NORMAN FREEDMAN TRADING AS MILNE BERRY & BERGER

NG 7269 OF 1998

THE HON JUSTICE MARCUS EINFELD AO
SYDNEY
2 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7269 OF 1998

RE:

BETWEEN:

PRANAY KUMAR BHATTACHARYA

PRANAY KUMAR BHATTACHARYA
Debtor

AND:

VICTOR BERGER & HARRY NORMAN FREEDMAN TRADING AS MILNE BERRY & BERGER
Creditors

JUDGE:

THE HON JUSTICE MARCUS EINFELD AO

DATE OF ORDER:

2 JULY 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.the application of the debtor filed on 11 March 1998 to set aside the bankruptcy notice be dismissed

2.time for compliance with the bankruptcy notice be extended to 4 pm on Friday 9 July 1999

3.the debtor pay the creditors’ costs

Note:    Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7269 OF 1998

RE:

BETWEEN:

PRANAY KUMAR BHATTACHARYA

PRANAY KUMAR BHATTACHARYA
Debtor

AND:

VICTOR BERGER & HARRY NORMAN FREEDMAN TRADING AS MILNE BERRY & BERGER
Creditors

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	2 JULY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 23 March 1993, the debtor, who lives at Emu Plains, retained the creditors as his solicitors to investigate, presumably with a view to legal proceedings, his assertion and belief that his wife’s death on 15 November 1992 had resulted from a conspiracy by a number of people, including Ministers of the Crown, police and his wife’s treating doctor.  In his initial letter of the following day confirming his retainer, the creditor Harry Norman Freedman noted that he had informed the debtor at their meeting on the previous day that he considered the debtor’s allegation “very difficult to sustain” and that there was “no evidence to support [his] contention”.  The letter notes that the debtor wished nevertheless to proceed.  Accepting these…