Conde v Hunter
[2009] FMCA 751
•23 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CONDE v HUNTER | [2009] FMCA 751 |
| BANKRUPTCY – Application to set aside bankruptcy notice – notice based on order for costs – whether a final order. |
| Bankruptcy Act1966, s.40 |
| Hall v Nominal Defendant (1966) 117 CLR 423 |
| Applicant: | MILTON ARNOLDO CONDE |
| Respondent: | JOHN HUNTER |
| File Number: | BRG 468 of 2009 |
| Judgment of: | Wilson FM |
| Hearing date: | 23 July 2009 |
| Date of Last Submission: | 23 July 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 23 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| The Applicant in person: | Mr Conde |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Connor Hunter Law Firm |
ORDERS
That the application filed 14 July 2009 is dismissed.
That the applicant pay the respondent’s costs, fixed in the sum of $4260.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 468 of 2009
| MILTON ARNOLDO CONDE |
Applicant
And
| JOHN HUNTER |
Respondent
REASONS FOR JUDGMENT
This is an application brought to set aside a bankruptcy notice that was served on the applicant on 4 July 2009. The bankruptcy notice in turn relies upon a judgment of the District Court of Queensland given on
14 November 2008. Relevantly, order 3 made on that day requires the present applicant to pay the present respondent’s costs of an application to strike out the applicant’s amended statement of claim in the District Court proceedings. Further, Judge Searles ordered that the applicant’s proceedings be stayed pending payment of the costs ordered to be paid by him.
The applicant makes no attack on the form of the bankruptcy notice itself. The notice complies with the requirements of the Bankruptcy Act1966 (“the Act”).
The applicant, it seems, has two points. The first is that he contends that the respondent does not have a final judgment or order, the execution of which has not been stayed in terms of s.40(1)(g) of the Act. That argument is misconceived. A final order is one that disposes finally of an issue between the parties. The concept of what is a final order is discussed in cases such as Hall v Nominal Defendant (1966) 117 CLR 423. In this case, the issue was who should pay the costs of the application to set aside the applicant’s pleading. The order made by Judge Searles was a final order, insofar as it concerned that issue. His Honour ordered that the applicant pay the respondent’s costs. There is no merit in the first ground sought to be advanced by the applicant.
The second argument is that the applicant, on 1 July 2009, filed an application in the Queensland Court of Appeal, seeking to contest the adverse costs order. The order sought to be challenged on appeal being only as to costs, leave to appeal is required. There is another hurdle to the applicant in the Court of Appeal. His application for leave to appeal is filed many months out of time. Ordinarily, an appeal must be lodged within 28 days of the judgment being given, although there is power to extend that time. In this case, the applicant needs first to obtain an extension of time in which to file an application seeking leave to appeal, and, having obtained that extension, then needs leave to appeal against the adverse costs order.
Both of the matters that the applicant seeks to agitate involve the exercise of discretion on the part of the Court of Appeal, although it is notoriously difficult to obtain leave to appeal against an order for costs. In this case, in my view, that is even more so when no contest is made against the primary order made by Judge Searles, which was to strike out the applicant’s amended statement of claim. The application to the Court of Appeal seeks only to challenge orders 3 and 4 made by his Honour, and does not seek to challenge order 1.
In those circumstances, and having read the applicant’s application to the Court of Appeal and supporting affidavit, in my view the application has no prospects of success. In those circumstances, no good reason is shown for either setting aside the bankruptcy notice or extending time for compliance with it to await the outcome in the Queensland Court of Appeal. I therefore dismiss the application filed on 14 July 2009.
The respondent seeks the costs of this application. The applicant has been wholly unsuccessful and should pay costs. The quantum of those costs is set out at paragraph 13 of the submissions of the solicitor for the respondent. The amounts claimed in the first two items appear reasonable and appropriate. I do not propose to make any order in respect of the costs of photocopying, as the application to set aside the bankruptcy notice has really been determined on the applicant’s own material.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Wilson FM.
Associate: Lynnette Chin
Date: 5 August 2009
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