Brookfield v Yevad

[2002] FMCA 82

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BROOKFIELD v YEVAD [2002] FMCA 82

BANKRUPTCY – Bankruptcy Notice – application to set aside - whether the failure to comply with time limits set in ss.41(6A) and 41(7) is a bar to an application to set aside a bankruptcy notice simplicita – power under s.30(1) – no bar found where validity of bankruptcy notice impugned.

Bankruptcy Act 1966 (Cth) ss. 30(1), 41(6A), 41(7)

Ian Walter Brookfield and Septic Products Australia Pty Limited (In Liquidation) v Davey Products Pty Limited (FCA unreported 25 September 1998)
Guss v Johnstone (2000) 171 ALR 598
Re Vella ex-parte Seymour (1983) 67 FLR 287
John Richard Riordan ex-parte John Richard Riordan v Direct Acceptance Corporation Limited (Receiver & Manager Appointed) (In Liquidation) (FCA unreported 25 July 1995)
Udowenko & Ors ex-parte Alan Bernard Mitchell [1996] FCA 879

Re Neil James John Duckworth ex-parte Lockett (FCA unreported 12 February 1987)

Edward Arthur Shaddock ex-parte Commonwealth Bank of Australia [1998] FCA 355
Budimir v McMahon [2000] FCA 1312
Streimer v Tomas (1981) 37 ALR 211
Kleinwort Benson Australia Limited v Crowl (1998) 165 CLR 71

Cachia v Hanes (1994) 179 CLR 403

Applicant: IAN WALTER BROOKFIELD

Respondent: YEVAD PRODUCTS PTY LTD (FORMERLY DAVEY PRODUCTS PTY LTD) ACN 004 813 192

File No: AZ 79 of 2002

Delivered on: 17 May 2002

Delivered at: Adelaide

Hearing Date: 2 May 2002

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Mr Brookfield in person

Solicitors for the Respondent: Mr D Rydon of Thomson Playford

ORDERS

1. Application to dismiss dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

AZ 79 of 2002

IAN WALTER BROOKFIELD

Applicant

And

YEVAD PRODUCTS PTY LTD
(FORMERLY DAVEY PRODUCTS PTY LTD)
ACN 004 813 192

Respondent

REASONS FOR JUDGMENT

1. This application is an interesting diversion in the long running saga of proceedings between the present applicant, Mr Brookfield and the respondent.  Some of the history of the litigation between the parties is set out in the judgment of Mansfield J in Ian Walter Brookfield and Septic Products Australia Pty Limited (In Liquidation) v Davey Products Pty Limited [FCA unreported 25 September 1998].  In that case, as in this, a bankruptcy notice was served upon Mr Brookfield citing a debt of $380,493.82 in respect of a costs order made by Branson J on 19 December 1997 together with interest thereon which, by the date of the issue of this bankruptcy notice, totalled $141,641.24. 

2. The application which is before me is that the bankruptcy notice, the subject of the application, be set aside. It is accepted by Mr Brookfield that the application was made after the time limited for compliance with the bankruptcy notice had expired. It is also accepted that no application under s.41(6A) or s.41(7) Bankruptcy Act 1966 (Cth) was made although the application itself states that it is made under s.41 Bankruptcy Act.

3. It was explained to Mr Brookfield that an act of bankruptcy has been committed and that there is no power in this court to extend the…