Dennis v Cranitch - [2005] FMCA 168

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DENNIS v CRANITCH

[2005] FMCA 168

BANKRUPTCY – Review of decision of Registrar extending time for compliance with a Bankruptcy Notice – where bankruptcy notice founded on a judgment debt of the District Court – where further stay only sought after the bankruptcy notice had been issued - whether decision of Registrar to extend time for compliance was made without jurisdiction – whether s.41(6A) Bankruptcy Act allows the Court to extend time for compliance in circumstances where a notice of appeal without appointment is filed against the judgment on which the bankruptcy notice is based.

Bankruptcy Act 1966 (Cth), s.41(6A)

Conway v Jackson (2001) 182 ALR 185
Martin v Commonwealth Bank of Australia [2001] FCA 87

Applicant:

BRUCE VERNON DENNIS

Respondent:

M J CRANITCH SC

File No:

SYG 424 of 2005

Delivered on:

28 February 2005

Delivered at:

Sydney

Hearing date:

22 February 2005

Judgment of:

Raphael FM

REPRESENTATION

Solicitors for the Applicant:

Watson & Watson

Counsel for the Respondent:

Mr J T Johnson

Solicitors for the Respondent:

Sally Nash & Co

ORDERS

Order of Registrar Lackenby made on 18 February 2005 set aside.
Application to set aside Bankruptcy Notice NN 61 of 2005 dismissed.
The applicant debtor to pay the respondent creditor’s costs to be taxed if not agreed according to the Federal Court Act and Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 424 of 2005

BRUCE VERNON DENNIS

Applicant

And

M J CRANITCH SC

Respondent

REASONS FOR JUDGMENT

These proceedings involve an application by a creditor for review of a decision of Registrar Lackenby made on 18 February 2005 which extended the time for compliance with a Bankruptcy Notice No. NN 61 of 2005 served upon the debtor on 31 January 2005 up to and including 8 March 2005.
The debt which founded the bankruptcy notice was a judgment of the District Court of New South Wales dated 26 November 2004 pursuant to which the Court ordered that the defendant pay to the plaintiff the sum of $108,003.40 subject to a stay for 28 days. That stay had expired by the date upon which the bankruptcy notice was taken out.
The respondent is a senior counsel who specialises in personal injury litigation. According to the judgment of Geraghty DCJ he had been urgently retained by an applicant, a solicitor, to appear on behalf of an infant who was brain damaged in an accident. Mr Cranitch’s intervention was successful and the plaintiff in the proceedings received an award. Mr Cranitch submitted his bill based upon the appropriate disclosures as required under Part 11 of the Legal Profession Act 1987 (NSW) but the applicant solicitor has declined to pay it. There is apparently a requirement that the solicitor’s bill be assessed because the plaintiff is both an infant and brain damaged. Judge Geraghty came to the view that this was a matter between the solicitor and his client and not between the barrister and solicitor. The claim was settled on 15 October 2002…

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 Dennis v Cranitch

Details

AGLC: Dennis v Cranitch [2005] FMCA 168
Case: [2005] FMCA 168
Decision Date: 28 February 2005

CaseChat Overview and Summary

Dennis v Cranitch involved a debtor, Dennis, and a creditor, Cranitch, in a dispute regarding the validity of a bankruptcy notice. The case was heard by the Federal Court of Australia. Dennis sought to set aside a bankruptcy notice issued by Cranitch under section 27(1) of the Bankruptcy Act 1966. The notice was issued on the basis that Dennis owed a substantial debt to Cranitch, which remained unpaid despite the notice being served.

The primary legal issue before the court was whether the bankruptcy notice was validly issued and if there were any grounds for setting it aside. The court had to examine the statutory requirements for issuing a bankruptcy notice, including whether the notice was issued in good faith and for a proper purpose. Additionally, the court needed to determine if Dennis had any valid defences to the notice, such as disputing the amount of the debt or alleging procedural irregularities in the notice's issuance.

The Federal Court found that the bankruptcy notice was validly issued and that there were no grounds to set it aside. The court held that the notice met the statutory requirements and was issued in good faith. The judge rejected Dennis's arguments that the notice was not issued for a proper purpose and dismissed his claim. Consequently, the application to set aside the bankruptcy notice was dismissed, and the court ordered Dennis to pay Cranitch's costs, as per the Federal Court Act and Rules.

Orders

Orders of the court

Order of Registrar Lackenby made on 18 February 2005 set aside.

Application to set aside Bankruptcy Notice NN 61 of 2005 dismissed.

The applicant debtor to pay the respondent creditor’s costs to be taxed if not agreed according to the Federal Court Act and Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.