FEDERAL COURT OF AUSTRALIA
CFB18 v Reader Lawyers & Mediators [2018] FCA 611
File number: WAD 42 of 2017 Judge: COLVIN J Date of judgment: 7 May 2018 Catchwords: BANKRUPTCY AND INSOLVENCY - application to set aside bankruptcy notice - whether the applicant has a counter‑claim , set‑off or cross demand pursuant to s 40(1)(g) of the Bankruptcy Act 1966 (Cth) - where applicant's alleged off‑setting claim arises from respondent's representation in Family Court proceedings - no offsetting claim
BANKRUPTCY AND INSOLVENCY - Application to extend time to review Registrar's decision - whether there was a deemed extension pursuant to s 41(7) of the Bankruptcy Act 1966 (Cth)
PRACTICE AND PROCEDURE - judgment and orders -judgment containing an account of matters that occurred in Family Court proceedings - whether non‑publication order should be made having regard to s 121 of the Family Law Act 1975 (Cth) - non‑publication order made
Legislation: Bankruptcy Act 1966 (Cth) ss 40(1)(g), 41, 41(3), 41(6A), 41(7), 44(1)(c)
Family Law Act 1975 (Cth) s 121
Federal Court of Australia Act 1976 (Cth) ss 35A(5), 37AE, 37AG(1)
Civil Judgments Enforcement Act 2004 (WA) ss 7, 15
Cases cited: Abigroup Ltd v Abignano [1992] FCA 567; (1992) 39 FCR 74
Attwells v Jackson Lalic Lawyers Pty Ltd [2016] HCA 16; (2016) 259 CLR 1
Chen v Migration Agents Registration Authority (No 1) [2016] FCA 649
Coshott v Prentice (No 2) [2016] FCA 1531
Ebert v Union Trustee Company of Australia Ltd (1960) 104 CLR 346
Ebert v Union Trustee Company of Australia Ltd (1961) 105 CLR 327
Elkateb v Lawindi [2000] FCA 1939
Guss v Johnstone [2000] HCA 26
Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747; (2001) 118 FCR 308
Lindholdt v Merritt Madden Printing Pty Ltd [2002] FCA 260
Martin v Commonwealth Bank of Australia [2001] FCA 87
Mazukov v University of Tasmania [2004] FCAFC 159
Murdaca v Accounts Control Management Services Pty Ltd [2007] FCA 964
Oreb v Australian Securities and Investments Commission [2016] FCA 321
Palaniappan v Westpac Banking Corporation [2017] FCAFC 121
Re Edelsten; Ex parte Donnelly (1988) 18 FCR 434
Re Glew; Glew v Harrowell [2003] FCA 373
ReSchekeloff; Ex Parte Schekeloff v The Hopkins Group Pty Ltd (1989) 22 FCR 407
Re Shaddock; Ex parte Commonwealth Bank of Australia [1998] FCA 355
Shephard v Chiquita Brands South Pacific Ltd [2004] FCAFC 76
State Bank of New South Wales v Gomez [2002] FCA 1476
Streimer v Tamas (1981) 54 FLR 253
Vogwell v Vogwell (1939) 11 ABC 83
Date of hearing: 19 April 2018 Registry: Western Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 93 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr SV Forbes Solicitor for the Respondent: Stewart Forbes Solicitor ORDERS
WAD 42 of…
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- AGLC
- CFB18 v Reader Lawyers & Mediators [2018] FCA 611
- Case
- [2018] FCA 611
- Decision Date
CaseChat Overview and Summary
The court held that the application to review the Registrar's decision was out of time, but granted an extension of time to bring the application. The court found that the application to set aside the bankruptcy notice was not meritorious as CFB18 had not established a valid offsetting claim. The court held that the alleged offsetting claim was not effective or real, and that it did not meet the requirements of section 40(1)(g) of the Bankruptcy Act 1966 (Cth). The court also found that there was an automatic extension of time under section 41(7) of the Bankruptcy Act 1966 (Cth), and that the respondent had six months after the dismissal of the application to present a creditor's petition based upon a failure to comply with the bankruptcy notice.
The court dismissed the application to review the decision of the Registrar and ordered CFB18 to pay the costs of the application. The court also made a non-publication order to protect the identity of the parties involved in the Family Court proceedings, in accordance with section 121 of the Family Law Act 1975 (Cth). The court's decision was based on the evidence presented and the relevant provisions of the Bankruptcy Act 1966 (Cth) and the Family Law Act 1975 (Cth).
Orders
Orders of the court
1. Until further order the applicant be named as CFB18.
2. The time for bringing an application to review the decision of the Registrar dismissing the application to set aside the bankruptcy notice issued by the respondent and served on the applicant on 21 January 2017 be extended until 23 February 2018.
3. The application to review the decision of the Registrar be dismissed.
4. The applicant do pay the costs of the application to review the decision of the Registrar to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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