Booth v Heller Equipment Finance Ltd

[2000] FCA 423

FEDERAL COURT OF AUSTRALIA

Booth v Heller Equipment Finance Ltd [2000] FCA 423    

MICHAEL BOOTH v HELLER EQUIPMENT FINANCE LIMITED (FORMERLY KNOWN AS SH LOCK LEASING LIMITED)

N 8334 of 1999

LINDGREN J
29 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8334 OF 1999

BETWEEN:	MICHAEL BOOTH APPLICANT
AND:	HELLER EQUIPMENT FINANCE LIMITED (FORMERLY KNOWN AS SH LOCK LEASING LIMITED) RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	29 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.        The applicant pay the respondent’s costs. 

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	N 8334 OF 1999

BETWEEN:	MICHAEL BOOTH APPLICANT
AND:	HELLER EQUIPMENT FINANCE LIMITED (FORMERLY KNOWN AS SH LOCK LEASING LIMITED) RESPONDENT

JUDGE:	LINDGREN J
DATE:	29 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

1. The applicant (“Mr Booth”) applies to set aside bankruptcy notice 2243 of 1999 which was served on him on 29 November 1999.  That bankruptcy notice was founded on a final judgment or order on 7 May 1998 in favour of the respondent (“Heller”) in the District Court of New South Wales at Sydney in proceeding 1093/98 for a sum of $57,165.27 plus costs.  The bankruptcy notice was issued on 12 November 1999 for $66,355.53, including interest of $7,739.26. 

2. On 29 February 2000 Deputy Registrar Quinn dismissed the application and Mr Booth has applied for review of her decision.  Mr Booth relies on an affidavit of Edison Bayas filed on behalf of Heller which refers to the fact that on or about 10 December 1999, while the twenty one day period of the bankruptcy notice was still running, Heller received $38,000 as a result of a settlement which it arrived at on or about 10 November 1999 with the fourth defendant in that proceeding.  There were five defendants in that proceeding of whom the fourth was one Kerry Gerard Meehan.  Mr Booth submits that Heller was obliged to disclose that payment to him promptly so that he would know that the amount he had to pay by 20 December 1999 in order to avoid committing of an act of bankruptcy was substantially less than the amount specified in the bankruptcy notice. 

3. I need not enter upon that question because, assuming that Mr Booth is correct, the failure of Heller to notify him promptly of the payment is not a ground on which the bankruptcy notice can be set aside.  The bankruptcy notice is based on a final judgment or order and no challenge is made to the form or content of the notice.  What Mr Booth complains about is an event subsequent to the issue and service of the notice.  That event may be relevant to the fate of a creditor’s petition founded on Mr Booth’s non-compliance with the bankruptcy notice but it is irrelevant to the present application.

4. In the result the Court orders that the application be dismissed and that the applicant pay the respondent’s costs. 

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:            4 April 2000

The Applicant appeared in person
Counsel for the Respondent:	Mr D D Knoll
Solicitors for the Respondent:	Michell Sillar
Date of Hearing:	29 March 2000
Date of Judgment:	29 March 2000