FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DJ SWEENEY HOLDINGS PTY LTD v MCLEOD | [2011] FMCA 608 |
| BANKRUPTCY – Bankruptcy notice – whether bankruptcy notice can be issued by separate creditors for separate debts against the one debtor. |
| Bankruptcy Act 1966, ss.41, 44 Bankruptcy Legislation Amendment Bill 2002 Acts Interpretation Act 1901, s.23 |
| Scook v Sims Construction Pty Ltd [2004] FCAFC 306 McIntyre v Gye [1994] 122 ALR 289 GPW Aussie Exports v Latin & Anor (1998) 85 FCR 324 Low, Re: Ex parte Argentine Gold Fields Ltd [1891] 1 QB 147 Wallace & Two Others v Kelsall (1840) 7 Meeson and Welsby 264, 151 E.R. 765 McWilliam v Jackson [2000] 96 FCR 561 Re Hamor; Ex Parte Deamor& Anor [1968] 11 FLR 261 Brebner v Bruce (1950) 82 CLR 161 Owners of Strata Plan No 5459 v Mason [1999] FCA 1137; (1999) 91 FCR 92 McDonnell v Fernwood Fitness Centre Pty Ltd [2005] FMCA 877 James v Federal Commissioner of Taxation [1955] 93 CLR 631 |
| Applicant: | DJ SWEENEY HOLDINGS PTY LTD |
| Respondent: | VICKI MARGARET MCLEOD |
| File Number: | SYG 522 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 2 August 2011 |
| Date of Last Submission: | 2 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 9 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | D.W. Rayment |
| Solicitors for the Applicant: | David Begg & Associates |
| For the Respondent: | In person by phone |
ORDERS
Petition dismissed.
No order as to costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 522 of 2011
| DJ SWEENEY HOLDINGS PTY LTD |
Applicant
And
| VICKI MARGARET MCLEOD |
Respondent
REASONS FOR JUDGMENT
This proceeding, which is an application for a sequestration order against the respondent, raises the interesting question whether a bankruptcy notice may be issued on behalf of two different creditors in respect of two different debts, albeit owed by the one debtor. If this is the case then the petition may proceed to finalisation at the next hearing but if it is not then the petition must be dismissed based as it is upon an invalid bankruptcy notice.
The bankruptcy notice itself is in the new form. It is addressed to the respondent and states:
“You are notified that:
Creditor’s name and ABN/CAN if applicable (if more than one creditor, include all creditors)
DJ SWEENEY HOLDINGS PTY LIMITED CAN 087 686 128 AND DAVID JAMES SWEENEY
Address
LOT 1 CAMPBELLTOWN ROAD
Address (line 2) Postcode
INGLEBURN NSW 2565
claim/s that you owed the following debt
1. Amount as per the attached final judgment/s or final order/s
(note A) $304,329.17
2. Add legal costs (note B)
3. Add interest accrued since date of judgment/s or order/s (note C) $ 34,756.05
4. Sub total (1+2+3) $339,085.22
5. Less payments made and/or credit allowed since judgment/s
or order/s $0.00
6. TOTAL DEBT AMOUNT (4-5) $339,085.22”
On page 2 of the notice it states in paragraph 1:
“You are required, within 21* days after service on you of the Bankruptcy Notice, to either:
(a) pay to the creditor the…
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- Case
- [2011] FMCA 608
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court involved the validity of the contract between the parties and the grounds for McLeod's removal as a director. The court had to determine whether the contract was entered into under circumstances that rendered it unconscionable and whether McLeod's conduct justified his removal from the company. The court considered evidence and arguments from both parties regarding the nature of the contract and McLeod's role within the company.
The court concluded that the contract between the parties was not unconscionable, and that McLeod had not engaged in any behaviour that would warrant his removal as a director. The court found that the plaintiff had failed to establish the necessary grounds for the relief sought. Consequently, the court dismissed the petition and made no order as to costs. The ruling effectively upheld the validity of the contract and McLeod's position within the company.
Orders
Orders of the court
1.
Petition dismissed.
2.
No order as to costs.
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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