Bond v Charlton
[2003] FMCA 248
•24 March 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOND v CHARLTON & ORS | [2003] FMCA 248 |
| BANKRUPTCY – Application to set aside bankruptcy notice – applicant proposes to seek to set aside judgment debt – dismissed. |
Bankruptcy Act 1966 (Cth)
Legal Profession Practice Act 1987 (NSW)
Federal Magistrates Court Rules 2001
Byron v Southern Star Group (1997) 73 FCR
| Applicant: | GRAEME COLIN BOND |
| Respondents: | MALCOLM CHARLTON, SASHA SHEARMAN AND FIONA READ trading as CHARLTON SHEARMAN MEDICAL LAWYERS |
| File No: | MZ 177 of 2003 |
| Delivered on: | 24 March 2003 |
| Delivered at: | Melbourne |
| Hearing Date: | 24 March 2003 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr G.C. Bond appeared on his own behalf |
| Counsel for the Respondent: | Mr P. Dunn QC |
ORDER
THE COURT ORDERS THAT:
The application filed 24 February 2003 is dismissed.
The applicant pay the respondent's costs of and incidental to the application in accordance with rule 29.08 of the Federal Magistrates Court Rules 2001.
The Court certifies for Counsel pursuant to rule 21.16 of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 177 of 2003
| GRAEME COLIN BOND |
Applicant
And
| MALCOLM CHARLTON, SASHA SHEARMAN AND FIONA READ trading as CHARLTON SHEARMAN MEDICAL LAWYERS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment.
The matter comes before the court on an application filed 24 February 2003 by the applicant Mr Graeme Colin Bond. In support of that application is an affidavit filed the same date. Service of the application upon the respondent was of recent date. The respondent has counsel representing it this day but has not been in a position to make, file and serve any affidavit material in opposition to the application. Nevertheless, submissions have been made by counsel acting on behalf of the respondent and the respondent does not object to the matter proceeding.
Mr Bond seeks the bankruptcy notice number nn 205/03 and dated the 29th January 2003 be set aside. That bankruptcy notice was founded upon a judgment obtained by the respondent and registered on the 26/11/2002 in a local court in New South Wales. The judgment sum was in the amount of $10,032.28 and interest accrued on that sum was also claimed. The total debt said to be owing in the bankruptcy notice is $10,168.33.
Section 41.6A(a) and (b) of the Bankruptcy Act 1966 (Cth) are the relevant provisions in determining this application. Mr Bond is not saying to the court that the bankruptcy notice is itself defective. He requires it to be set aside because he proposes, he claims, to seek to set aside the judgment debt. As at the time of the matter proceeding before me, Mr Bond has taken no such steps.
The judgment debt arises out of a costs order. An assessor costed the respondent’s solicitor’s file and made a determination as to a costs order against Mr Bond on the 25/2/2002. Mr Bond appealed against that determination to the costs review panel and that panel affirmed the decision of the Costs Assessor, Mr C. Wall ordered the costs of the review panel to be paid by the review applicant, Mr Bond. That certificate as to determination of costs by the costs review panel was issued on the 10/7/2002. A copy of it was forwarded to Mr Bond care of his post box address in Glen Waverley in the State of Victoria which remains his postal address for service of documents in this application. That determination was then registered in the local court in New South Wales under the provision of the Legal Profession Practice Act 1987 (NSW). Mr Bond was able to appeal to the Supreme Court of New South Wales against the decision of the review panel (section 208L of the Legal Profession Practice Act 1987). Such right of appeal was limited by imposition of time restraint, namely 28 days from the 10/7/2002. Mr Bond received notice of the panel’s determination in July 2002. He did not at that time wish to pursue the matter with further litigation. Instead he filed a complaint with the Legal Services Commission in New South Wales. There remains no action pending by Mr Bond in the Supreme Court of New South Wales in relation to the monies owed by him. Given the process to date there is also, I find, little merit in any proposed application by Mr Bond as to this matter. There is nothing before me in evidentiary terms to establish that pursuant to s.41(7) of the Act Mr Bond has a counter-claim set off or cross-demand that he could not have set up in the original action.
There is no basis to extend the time for Mr Bond’s compliance with the bankruptcy notice. There is no appeal against the judgment on which the bankruptcy notice is based and where there, the evidence before me is such as to make any prospects of success slight [see Byron v Southern Star Group (1997) 73 FCR].
It is not appropriate for this Court to extend the time for compliance with the bankruptcy notice and I propose to dismiss the application accordingly.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate:
Date:
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