Boensch v Costin

[2005] FCA 1249

FEDERAL COURT OF AUSTRALIA

Boensch v Costin [2005] FCA 1249

FRANZ BOENSCH v MICHAEL COSTIN

NSD1202 of 2005

LINDGREN J
2 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1202 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	FRANZ BOENSCH APPELLANT
AND:	MICHAEL COSTIN RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	2 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The appeal be dismissed.

2The respondent’s costs of the appeal be treated as part of the respondent’s costs as petitioning creditor in the bankruptcy proceeding for the purposes of s 109(1)(a) of the Bankruptcy Act 1966 (Cth).

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1202 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	FRANZ BOENSCH APPLELLANT
AND:	MICHAEL COSTIN RESPONDENT

JUDGE:	LINDGREN J
DATE:	2 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a judgment given by Federal Magistrate Raphael in the Federal Magistrates Court of Australia on 12 July 2005 (Boensch v Costin [2005] FMCA 1028).

2. Before the Federal Magistrate, the appellant sought review of an order of Registrar Tesoriero dismissing an application under s 41 of the Bankruptcy Act 1966 (Cth) to set aside a bankruptcy notice or to extend the time for compliance with it.  His Honour dismissed the application and ordered the appellant to pay the respondent creditor's costs to be taxed, if not agreed, pursuant to the Federal Court of Australia Act 1976 and the Federal Court Rules.

3. On 17 August 2005 the appellant appeared in person and the creditor through his solicitor appeared before me, and I fixed the appeal for hearing today.

4. In the meanwhile, on 23 August 2005, a sequestration order was made in respect of the appellant's estate by Federal Magistrate Driver.

5. On the appeal being called this morning, the appellant has not appeared.  I am satisfied that he knew that the appeal was fixed for hearing this morning.

6. Pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), I dismiss the appeal.

7. The appropriate order in relation to costs is that the respondent creditor's costs of this appeal be treated as part of his costs as petitioning creditor for the purposes of s 109(1)(a) of the Bankruptcy Act 1966 (Cth).

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             9 September 2005

The appellant did not appear.
Solicitor for the Respondent:	Ms K McLean of McLean & Associates
Date of Hearing:	2 September 2005
Date of Judgment:	2 September 2005