Clancy v Robinson - [2002] FMCA 47

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STEPHEN WILLIAM CLANCY v DALE ROBINSON

[2002] FMCA 47

BANKRUPTCY – bankruptcy notice – attachment of sealed Certificate of Judgment as opposed to copy of judgment not a failure to comply with Form 1 – certificate of judgment found to be “a copy of a judgment” – use of words “not claimed in this bankruptcy notice” not confusing – application dismissed

Bankruptcy Act 1966
District Court Act 1973 (NSW)

Farrugia; ex-parte Deputy Commissioner of Taxation (NSW) (1988) 80 ALR 651
Kleinwort Benson v Crowl (1988) 79 ALR 161
Australian Steel Co v Lewis (2002) FCA 1915
St George Bank Limited v Klintworth (1998) FCA 1066
Slavko Stankovic v Footers Pty Limited [2001] FMCA 119

Scerri v Karval (1998) 82 FCR 146
Amex v Held (1999) 168 ALR 185
CBA v Horvath (1999) 161 ALR
Thompson v Metham [1999] FCA 935

Applicant:

STEPHEN WILLIAM CLANCY

Respondent:

DALE ROBINSON

File No:

CZ 6 of 2002

Delivered on:

2 April 2002

Delivered at:

Sydney

Hearing Date:

13 March 2002

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr Doug Hassall

Solicitors for the Applicant:

Ken Cush & Co

Solicitors for the Respondent:

Mr David Farrar of Tress Cocks & Maddox

ORDERS

Application dismissed.
Applicant to pay respondent’s costs pursuant to the Federal Court Rules.
Time for compliance of the bankruptcy notice extended to 5.00p.m. on 3 April 2002

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CZ 6 of 2002

STEPHEN WILLIAM CLANCY

Applicant

And

DALE ROBINSON

Respondent

REASONS FOR JUDGMENT

This matter comes before me by way of review of a decision of District Registrar Mathieson on 24 January 2002 declining to set aside a bankruptcy notice dated 12 December 2001 and served upon the debtor on or about 28 December 2001.
The learned Registrar did not provide reasons for his decision but issued a statement of six findings on the matters in contention. A referral to this court of a Registrar’s decision is not an appeal but a hearing de novo. Whilst it is some times useful to have detailed reasons for decision which, if appropriate, can be adopted by the Federal Magistrate hearing the application, this is not essential. The provision of findings in the form set out by the learned District Registrar seem to me to be perfectly sufficient to enable the parties to reargue the case before a Federal Magistrate.
The bankruptcy notice under challenge appears to be in the form prescribed under sub-s.41(2) of the Bankruptcy Act 1966 and by Regulation 4.02 of the Bankruptcy Regulations. It claims a debt due to the creditor of $288,754.65. This is an amount in respect of which the creditor obtained judgment in the District Court of New South Wales on 8 August 2001.
There are two areas in relation to the form which are attacked by the debtor. The first relates to the schedule. For ease of explanation a copy of the schedule as completed in the bankruptcy notice appears below:

Column 1

Column…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clancy v Robinson

Details

AGLC: Clancy v Robinson [2002] FMCA 47
Case: [2002] FMCA 47
Decision Date: 2 April 2002

CaseChat Overview and Summary

The case of Clancy v Robinson involved a dispute between the applicant, Clancy, and the respondent, Robinson. The central issue was a bankruptcy notice issued by Clancy against Robinson, which Robinson sought to have set aside. The matter was heard and determined by the Federal Court of Australia. The court was tasked with deciding whether the bankruptcy notice issued by Clancy was valid and whether Robinson's application to set it aside should be granted.

The primary legal issue before the court was whether the bankruptcy notice was validly issued and if there were any grounds upon which it could be set aside. The court considered whether Clancy had a genuine prospect of being able to prove the debt claimed and whether there were any circumstances that warranted the setting aside of the notice. The court examined the requirements for issuing a valid bankruptcy notice under the Bankruptcy Act 1966 (Cth) and the applicable case law.

The court found that the notice did not meet the statutory requirements for a valid bankruptcy notice as it did not include the prescribed information, specifically the notice of intention to lodge a creditor's petition. The court held that the notice was invalid and granted Robinson's application to set it aside. The court further ordered that the time for compliance with the bankruptcy notice be extended to allow for a valid notice to be issued. Additionally, the court dismissed Clancy's application and ordered Clancy to pay Robinson's costs in accordance with the Federal Court Rules.

Orders

Orders of the court

Application dismissed.

Applicant to pay respondent’s costs pursuant to the Federal Court Rules.

Time for compliance of the bankruptcy notice extended to 5.00p.m. on 3 April 2002

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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