Cross v TAYLOR and Waverley Hill Pty Ltd
[2010] FMCA 87
•2 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CROSS v TAYLOR & WAVERLEY HILL PTY LTD | [2010] FMCA 87 |
| BANKRUPTCY – Bankruptcy Notice – where creditor elected to accept funds as paying down a corporate debt – where creditor company had been deregistered but was reregistered prior to issue of bankruptcy notice. |
| Applicant: | BARRY PHILIP CROSS |
| Respondent: | GRAHAM TAYLOR & WAVERLEY HILL PTY LTD |
| File Number: | SYG 2945 of 2009 |
| Judgment of: | Raphael FM |
| Hearing date: | 2 February 2010 |
| Date of Last Submission: | 2 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 2 February 2010 |
REPRESENTATION
| For the Applicant: | In Person |
| Solicitors for the Respondent: | Robson & Oliver |
ORDERS
Application dismissed.
Applicant to pay the Respondents’ costs assessed in the amount of $1,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2945 of 2009
| BARRY PHILIP CROSS |
Applicant
And
| GRAHAM TAYLOR & WAVERLEY HILL PTY LTD |
Respondent
REASONS FOR JUDGMENT
In this matter Dr Cross, the debtor, seeks to have set aside a bankruptcy notice numbered NN4921/09 in which an amount of $25,550.40 was claimed against him, being the balance of moneys purportedly owed by him under various costs assessments. A complication in the matter was that money was owed to the respondents both by Dr Cross and by a company controlled by him. What occurred was that funds to the value of the amount owed personally by Dr Cross were paid to the respondents but were paid in such a manner that the respondents were entitled to make an election as to whether they were being paid by Dr Cross or by his company.
For reasons unknown, and to my mind irrelevant, Dr Cross sent the money not to the respondents or their solicitors but to the Australian Taxation Office who returned it to the solicitors. The funds were in the form of bank cheques so there was no way of identifying them as Dr Cross’ moneys as opposed to those of his company. In those circumstances, upon receipt of the funds from the taxation commissioner, the respondents elected to accept the money first in payment of the company’s debt and second in part payment of Dr Cross’s personal debt. Dr Cross raised the interesting and important point that Waverley Hill Proprietary Limited, one of the respondents, had become deregistered in 2008. The evidence establishes this is the case but I am advised that it was later reregistered prior to the issue of the bankruptcy notice. As the company had been reregistered by the time the bankruptcy notice was issued and was not deregistered at the time it made the election I am satisfied that it had the power to request that the official receiver issue the bankruptcy notice and that there was no invalidation of the election.
In those circumstances, which have been explained to Dr Cross, he has consented to this application being dismissed and I make that order together with an order that he pay the respondent’s costs which I assess in the sum of $1,500.00.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 11 February 2010
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