Coulter v P. Aker Flowerbulbs Pty Ltd

[2004] FMCA 297

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COULTER v P. AKER FLOWERBULBS PTY LTD [2004] FMCA 297

BANKRUPTCY – Interest on judgment debt – whether interest accrues when judgment debt payment stayed for period of time – inclusion of interest on bankruptcy notice – invalid bankruptcy notice – definition of “arrangement”.

Bankruptcy Act 1966 (Cth)
County Court Act 1958 (Vic)
Penalty Interest Rates Act 1983 (Vic)

Sussman v Johncorp Industries Pty Ltd [2002] FMCA 58

Applicant: DAVID COULTER

Respondent: P. AKER FLOWERBULBS PTY LTD

File No: MZ 1351 of 2003

Delivered on: 11 May 2004

Delivered at: Melbourne

Hearing date: 3 May 2004

Judgment of: Connolly FM

REPRESENTATION

Counsel for the Applicant: Mr Duggan

Solicitors for the Applicant: McNab McNab and Starke

Counsel for the Respondent: Mr T J Donaghey

Solicitors for the Respondent: Lewis Holdway

ORDERS

1. The bankruptcy notice be set aside.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1351 of 2003

DAVID COULTER

Applicant

And

P. AKER FLOWERBULBS PTY LTD

Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings consist of an application to set aside a bankruptcy notice served the bankrupt on or about the 7 December 2003 pursuant to the Bankruptcy Act 1966 (Cth).

The background

1. The history pertinent to this application is conveniently and accurately set out in the respondent’s Outline of Argument:

   2.The background facts of this application are:

   (a)The Respondent is engaged in the business of importing flower bulbs;

   (b)During 2001, the Respondent provided to the Applicant on account flower bulbs to the value of approximately $77,000.  When that account was not paid, the Respondent issued a proceeding against Mr Coulter in the County Court of Victoria.  Mr Coulter also counterclaimed;

   (c)On 8 May 2003, the Honourable Judge Holt of the County Court:

   (i) entered judgment on the Respondent’s claim, in the sum of $68,553.59; and

   (ii) dismissed Mr Coulter’s counterclaim;

   (d)On 23 September 2003 a telephone conversation (“23 September conversation”) occurred between Mr Coulter and Mr Aker, a director of the Respondent;

   (e)On about 30 October 2003, the Respondent applied for a bankruptcy notice to be issued in accordance with section 41 of the Act;

   (f)On 9 November 2003 the Respondent served a bankruptcy notice upon Mr Coulter.  On the last day for compliance with the bankruptcy notice, Mr Coulter made this application to set aside the bankruptcy notice, relying upon the 23 September conversation;

   (g)On 11 December 2003, the first return of Mr Coulter’s application, it was apparent to the Respondent that evidence relating to Mr Coulter’s claims would be required.  Directions were made by the Court; and

   (h)On about 19 February 2004, the Respondent filed and served an affidavit of Mr Petrus (referred to in the Coulter affidavit as “Peter”) Aker, a director of the Respondent, pursuant to the directions.

   What Mr Coulter says

   3. Mr Coulter’s affidavit (“Coutler affd”) has four key elements.  The first of these is that the 23 September conversation was held with Mr Aker.

   4. The second is…