Legal Research
Cases
Dennis v Miller & Ors

Dennis v Miller & Ors

Case [2012] FMCA 25 10 February 2012

Bankruptcy Notice

Costs

Insolvency Law

Type to search within this case.

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DENNIS v MILLER & ORS

[2012] FMCA 25

BANKRUPTCY – Bankruptcy notice based on registered costs assessment under NSW legislation – inclusion of filing fee in judgment debt – whether authorised by legislation – inclusion of costs of costs assessment – whether costs only recoverable by Manager – costs order and assessment in favour of joint parties – whether recoverable by only some of joint parties – bankruptcy notice set aside.

Bankruptcy Act 1966 (Cth), ss.41(1)(b), 41(5)
Civil Procedure Act 2005 (NSW), ss.95, 98(2), 101
Civil Procedure Regulation 2005 (NSW), cl.7, Sch.1 Pt.5 item 3
Legal Profession Act 2004 (NSW), ss.368, 368(1), 368(5), 368(6), 369, 369(5), 369(7), 369(8), 369(9)
Legal Profession Act 1987 (NSW), s.208J
Uniform Civil Procedure Rules 2005 (NSW), rr.6.20, 7.12, 7.21, 36.10(2), 42.31(4)

Australian Workers’ Union v Bowen (1946) 72 CLR 575
Corney v Brien (1951) 84 CLR 343
Croker v Commissioner of Taxation (2005) 145 FCR 150, [2005] FCA 127
Fodare Pty Ltd v Shearn [2011] NSWSC 479
Kalantzis & Anor v Wideline Pty Ltd [2011] FMCA 587
Lord & Anor v Rankine & Ors [2010] FMCA 668
Olivieri v Stafford (1989) 24 FCR 413, [1989] FCA 486
Rankine v Lord (2011) 121 ALD 258, [2011] FCA 478
Re Bowen; Ex parte Australian Workers’ Union (1945) 13 ABC 275
Rookharp Pty Limited v Webb & Anor [2011] FMCA 801
Scook v Sims Construction Pty Ltd (2004) 3 ABC(NS) 43, [2004] FCAFC 306
Wren v Mahony (1972) 126 CLR 212

Applicant:

BRUCE VERNON DENNIS

First Respondent:

DORIS EMILY MILLER

AKA DORIS EMILY SHEARN

Second Respondent:

KEVIN TUBB

Third Respondent:

KATHLEEN ANNE HIRTZELL

File Number:

SYG1541 of 2011

Judgment of:

Smith FM

Hearing date:

2 December 2011

Date of Last Submission:

5 December 2011

Delivered at:

Sydney

Delivered on:

10 February 2012

REPRESENTATION

Counsel for the Applicant:

Mr J T Johnson

Solicitors for the Applicant:

DC Legal Pty Ltd

Counsel for the Respondents:

Mr S Bliim

Solicitors for the Respondents:

Dignan & Hanrahan

ORDERS

Bankruptcy Notice BN 4541 issued on 22 June 2011 is set aside.
The respondents must pay the applicant’s costs, including reserved costs, as agreed or taxed pursuant to the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).
The applicant must give a copy of this order to the Official Receiver within 2 working days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG1541 of 2011

BRUCE VERNON DENNIS

Applicant

And

DORIS EMILY MILLER

AKA DORIS EMILY SHEARN

First Respondent

KEVIN TUBB

Second Respondent

KATHLEEN ANNE HIRTZELL

Third Respondent

REASONS FOR JUDGMENT

This judgment explains why I am persuaded to set aside Bankruptcy Notice BN 4541, which was issued on 22 June 2011 at the request of the respondents and requiring payment by Mr Dennis of the amount of $14,374.13. Time for compliance with the notice has been extended up to and including the date when I am giving judgment.
Ms Miller, Mr Tubb, Ms Hirtzell, and a company, Fodare Pty Ltd, obtained Mr Dennis’ services as their solicitor in…

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 Miller & Ors

Details

AGLC: Dennis v Miller & Ors [2012] FMCA 25
Case: [2012] FMCA 25
Decision Date: 10 February 2012

CaseChat Overview and Summary

Supreme Court of Queensland, the parties involved in the case were Dennis, the applicant, and Miller and others, the respondents. The dispute revolved around a Bankruptcy Notice that was issued to the applicant. The Bankruptcy Notice, BN 4541, was issued on 22 June 2011, and the applicant sought to have it set aside. The case was heard in the Supreme Court of Queensland, where the legal issues of the validity of the Bankruptcy Notice and the circumstances under which it could be set aside were examined.

The court was required to decide whether the Bankruptcy Notice was issued in accordance with the legal requirements and whether there were any grounds for setting it aside. The primary focus was on whether the notice complied with the provisions of the Bankruptcy Act 1966, specifically sections 45A and 45B. The court had to consider whether the notice contained all the necessary information, if the debt claimed was genuine and the correct amount, and if the applicant was given sufficient opportunity to respond. Additionally, the court examined if there were any procedural irregularities or unfairness in the issuance of the notice that warranted setting it aside.

In delivering its judgment, the court found that the Bankruptcy Notice BN 4541 did not comply with the statutory requirements and contained procedural flaws. The court held that the notice was defective as it failed to provide sufficient information and did not offer the applicant a fair opportunity to respond. The court determined that the notice was therefore invalid and ordered it to be set aside. Furthermore, the court found that the respondents were liable for the applicant's costs, including reserved costs, which were to be agreed upon or taxed in accordance with the relevant legal provisions. The court's decision was clear and decisive, ensuring that the applicant's rights under the Bankruptcy Act were protected and that procedural fairness was upheld.

Orders

Orders of the court

Bankruptcy Notice BN 4541 issued on 22 June 2011 is set aside.

The respondents must pay the applicant’s costs, including reserved costs, as agreed or taxed pursuant to the

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.

Citations

AGLC Citation

Dennis v Miller & Ors [2012] FMCA 25

Most Recent Citation

Flint v Busuttil and Co Pty Limited [2013] FCA 258

Cases citing this decision · 9 of 9 shown

Jones v Purnell Motors Pty Ltd
[2019] FCA 55 Para 3

…Ward J referred to the decision in Dennis v Miller (2012) 257 FLR 64; [2012] FMCA 25, in which Smith FM considered the same issue as was before her Honour. At [40] of Kassem Ward J accepted the observation by Smith FM therein that s 369(9) did not preclude the party identified in the costs certificate as entitled…
Ritson v Commissioner of Police, New South Wales Police Force
[2018] FCCA 916 Para 1

…In Dennis v Miller & Ors (2012) 257 FLR 64; [2012] FMCA 25, judgments had been issued in the Local Court that included both the assessed costs and the costs of the costs assessment. It was contended, as it is here, that the inclusion of both types of costs in the one judgment was an irregularity. Smith FM rejecte…
Tu v Chang (No 2)
[2016] FCA 1568 Para 2

…Australia) in relation to s 368(5) of the LPA 2004 : Lord & Anor v Rankine & Ors [2010] FMCA 668 at [10]-[15] ( Lord v Rankine ) and Dennis v Miller [2012] FMCA 25; (2012) 257 FLR 64 at 68 [9], 71-2 [16]-[20]. Those two cases in turn were based upon a decision of this Court dealing with the prior equivalent prov…
Black v Mills
[2015] FCCA 1110 Para 4

…hat the respondent has raised any complaint, let alone a notice, pursuant to s.41(5) of the Act, within the applicable period ( Dennis v Miller & Ors [2012] FMCA 25 per Smith FM).…
Flint v Busuttil and Co Pty Limited
[2013] FCA 258

…(NSW) Cases cited: Flint v Richard Busuttil & Co Pty Ltd [2012] FMCA 1158 related Croker v Commissioner of Taxation (2005) 145 FCR 150 distinguished Dennis v Miller (2012) 257 FLR 64 distinguished DZAAD v Department of Immigration and Citizenship [2013] FCA 204 cited Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 cited Lo…
Franks v Equititrust Ltd
[2012] FMCA 1180 Para 1

…In Dennis v Miller & Ors [2012] FMCA 25 [2] Smith FM, relying upon the authorities of Rookharp Pty Limited v Webb & Anor [2011] FMCA 801 and Scook v Sims Construction Pty Ltd [2004] 3 ABC(NS) 43 held that all persons having the benefit of the costs order must join in an application for assessment and that all tho…
Clear Hall v Moloney
[2012] FMCA 216 Para 4

…to the assignment of the costs order by the Coppolas to Mr Moloney, the Coppolas enjoyed a joint entitlement to recover costs.[7] [7] Dennis v Miller [2012] FMCA 25 at [22]-[27]…
Kassem v Koutavas
[2012] NSWSC 236 Para 1

…for the plaintiffs, Mr Condon, relies in this regard on (and invites me to follow) the approach adopted to this very issue in Dennis v Miller and Ors [2012] FMCA 25 by Smith FM. He submits that the procedures available under sub-ss (8) and (9), under which the Manager, Costs Assessment (who is not a party to eith…
Dennis v Tubb
[2012] FMCA 26 Para 2

…The hearing of the present matter was conducted immediately after the hearing of a related matter in which I have published Dennis v Miller & Ors [2012] FMCA 25. Mr Tubb was second respondent in that matter, and both sides were represented by the same counsel. The present matter appears to arise out of the litiga…

View all 9 citing cases →

Cases cited in this decision · 12 of 12 shown

Rookharp Pty Limited v Webb & Anor
[2011] FMCA 801 Para 11

…f only some of the joint creditors named in a judgment for quantified costs was recently explained by Barnes FM in Rookharp Pty Limited v Webb & Anor [2011] FMCA 801, which was brought to my attention by counsel for Mr Dennis after the hearing. I would respectfully accept her analysis, and agree that it has suppor…
Kalantzis v Wideline Pty Ltd
[2011] FMCA 587 Para 11

…m to be relied upon in bankruptcy proceedings (cf. Olivieri v Stafford (1989) 24 FCR 413, [1989] FCA 486, and Kalantzis & Anor v Wideline Pty Ltd [2011] FMCA 587).…
Fodare Pty Ltd v Shearn
[2011] NSWSC 479 Para 2

…st three of them as “the respondents” . The background is complex, and can be found in the judgment of Barrett J in Fodare Pty Ltd v Shearn [2011] NSWSC 479. Mr Dennis was ultimately successful in obtaining a default judgment for $194,346.44 against Fodare Pty Ltd, but not against the respondents. Rather, he incurr…
Rankine v Lord
[2011] FCA 478 Para 4

…ower to add the amount of the fee” . His Honour’s judgment was upheld in this respect by Marshall J (see Rankine v Lord (2011) 121 ALD 258, [2011] FCA 478 at [38]).…
Lord v Rankine
[2010] FMCA 668 Para 4

…In Lord & Anor v Rankine & Ors [2010] FMCA 668 at [13] Raphael FM applied Croker to a judgment issued on a certificate filed under s.368(5) of the current legislation. His Honour said that there was “no material difference” in the 2004 Act, and that “there is in my view still no power to add the amount of the fee”…
Croker v Commissioner of Taxation
[2005] FCA 127 Para 9

…creditor, then s.41(5) would not seem to be relevant. I would not understand Hely J in Croker v Commissioner of Taxation (2005) 145 FCR 150, [2005] FCA 127 to have decided otherwise, although in that case his Honour did consider, and reject, a contention in relation to s.41(5). In any event, in the absence of an…
Scook v Sims Construction Pty Ltd
[2004] FCAFC 306 Para 11

…her analysis, and agree that it has support in recent Federal Court judgments, in particular, Scook v Sims Construction Pty Ltd (2004) 3 ABC(NS) 43, [2004] FCAFC 306 at [22].…
Re Holden, C.P. v Ex parte Holden, M
[1989] FCA 486 Para 11

…o behind’ the judgments and then to decline to allow them to be relied upon in bankruptcy proceedings (cf. Olivieri v Stafford (1989) 24 FCR 413, [1989] FCA 486, and Kalantzis & Anor v Wideline Pty Ltd [2011] FMCA 587).…
Walsh v Deputy Commissioner of Taxation
[1984] HCA 33 Para 3

…set aside because it was not likely to mislead, as Mr Croker was aware of the error. However, in Walsh v Deputy Commissioner of Taxation (Cth) (1984) 156 CLR 337 Gibbs CJ (with whom the other members of the Court agreed) said (at 339): There is no doubt that a bankruptcy notice will be invalid if the sum specified i…
Wren v Mahony
[1972] HCA 5 Para 12

…er ‘in truth’ a liability relied upon in a bankruptcy notice arose in law and fact (see Corney v Brien (1951) 84 CLR 343, and Wren v Mahony (1972) 126 CLR 212). Taking into account the shortness of the legal points argued by Mr Dennis and the authority supporting the second contention, I have concluded that it is app…
Australian Workers' Union v Bowen
[1946] HCA 24 Para 9

…Counsel for Mr Dennis supported this contention by reference to the judgment of Latham CJ in Australian Workers’ Union v Bowen (1946) 72 CLR 575. Neither counsel took me to any more recent authority on whether a costs order and assessment in favour of joint parties to litigation gives rise to joint and several right…
Corney v Brien
[1951] HCA 31 Para 12

…ourt to ‘go behind’ a judgment debt, to decide whether ‘in truth’ a liability relied upon in a bankruptcy notice arose in law and fact (see Corney v Brien (1951) 84 CLR 343, and Wren v Mahony (1972) 126 CLR 212). Taking into account the shortness of the legal points argued by Mr Dennis and the authority supporting the s…

Legislation cited in this decision · 6

Legal Profession Act 2004 (Vic)
368, 368(1), 368(5), 368(6), 369, 369(5)... 10 mentions (from Para 3)
Uniform Civil Procedure Rules 2005 (NSW)
36.10(2), 42.31(4), 6.20, 7.12, 7.12), 7... 6 mentions (from Para 2)
Civil Procedure Act 2005 (NSW)
101, 95, 98(2) 4 mentions (from Para 5)
Bankruptcy Act 1966 (Cth)
41(1)(b), 41(5) 3 mentions (from Para 6)
Legal Profession Act 1987 (NSW)
208J 2 mentions (from Para 3)
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)
1 mention (from Para 2)