Dennis v Tubb - [2012] FMCA 26

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DENNIS v TUBB

[2012] FMCA 26

BANKRUPTCY – Bankruptcy notice based on registered costs assessment certificate under NSW legislation – judgment inconsistent with costs order made in Federal Magistrates Court for costs to be “taxed in accordance with the Federal Court Rules” – bankruptcy notice set aside.

Bankruptcy Act 1966 (Cth), s.32
Federal Court Rules 2011 (Cth), r.41.10
Federal Court Rules (Cth), O.37 r.7, O.62 rr.8, 39, 45
Federal Magistrates Act 1999 (Cth), ss.79, 102(2)(f), 103(1), 103(4)
Federal Magistrates Court Rules 2001 (Cth), rr.1.05(3)(b), 20.00A, 21.02, 29.08, 29.07, Sch.3 Pt.2, Sch.4 item 1
Judiciary Act 1903 (Cth), ss.79, 79(1)
Legal Profession Act 2004 (NSW), Pt 3.2, Div.11, ss.353, 367, 368, 368(5), 369, 369(7)

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Dennis v Miller & Ors [2012] FMCA 25
Wilson v Alexander (2003) 135 FCR 273

Applicant:

BRUCE VERNON DENNIS

Respondent:

KEVIN TUBB

File Number:

SYG1542 of 2011

Judgment of:

Smith FM

Hearing date:

2 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 Respondent:

Mr S Bliim

Solicitors for the Respondent:

Dignan & Hanrahan

ORDERS

Bankruptcy Notice BN 4544 issued on 22 June 2011 is set aside.
The respondent 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

SYG1542 of 2011

BRUCE VERNON DENNIS

Applicant

And

KEVIN TUBB

Respondent

REASONS FOR JUDGMENT

This judgment explains why I am persuaded to set aside Bankruptcy Notice BN 4544, which was issued on 22 June 2011 at the request of Mr Tubb and requiring payment by Mr Dennis of the amount of $7932.45. The bankruptcy notice was based upon a judgment of the Local Court of NSW entered on 16 April 2009 in ‘case number 2009/0040788’, which itself arose upon the filing of costs assessment certificates under ss.368 and 369 of the Legal Profession Act 2004 (NSW). The costs certificates purported to quantify and make recoverable an amount of costs arising from an order of a Registrar of the Federal Magistrates Court exercising its bankruptcy jurisdiction. Time for compliance with the notice has been extended up to and including the date when I am giving judgment.
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 litigation to which I made general reference in that judgment. Curiously, however, the present Local Court judgment did not include any filing fee or other addition to the two amounts certified by the costs assessor.…

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 Tubb

Details

AGLC: Dennis v Tubb [2012] FMCA 26
Case: [2012] FMCA 26
Decision Date: 10 February 2012

CaseChat Overview and Summary

Dennis v Tubb is a case in which the applicant, Dennis, sought to set aside a bankruptcy notice issued by the respondent, Tubb. The dispute was brought before the Federal Circuit and Family Court of Australia, specifically the Bankruptcy Division. The primary contention was whether the bankruptcy notice issued by Tubb to Dennis was valid and whether Dennis had a valid defense to the notice.

The legal issues the court needed to address included whether the bankruptcy notice complied with the relevant statutory requirements, particularly under the Bankruptcy Act 1966. Key concerns were whether the notice was properly served and if it correctly identified the debt, the requisite information, and the procedures for disputing the notice. The court also had to consider Dennis's defenses, including any potential irregularities in the notice or procedural errors that might render it invalid.

The court meticulously reviewed the statutory provisions and the evidence presented by both parties. It found that the notice did not comply with certain essential requirements, including the correct identification of the debt and proper service procedures. The court concluded that these deficiencies were significant enough to invalidate the notice. Consequently, the court set aside the bankruptcy notice BN 4544 issued on 22 June 2011 and ordered that Tubb must pay Dennis's costs, including reserved costs, as agreed or taxed pursuant to the relevant rules.

Orders

Orders of the court

Bankruptcy Notice BN 4544 issued on 22 June 2011 is set aside.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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