Donohoo v Brooks
[2009] FMCA 595
•27 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DONOHOO & ANOR v BROOKS | [2009] FMCA 595 |
| BANKRUPTCY – Application to set aside bankruptcy notice. |
| Applicant: | RALPH DONOHOO & TROY DONOHOO |
| Respondent: | MALCOLM BROOKS |
| File Number: | BRG 330 of 2009 |
| Judgment of: | Wilson FM |
| Hearing date: | 27 May 2009 |
| Date of Last Submission: | 27 May 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 27 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | Applicants in person |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Ellison Moschella & Co |
ORDERS
That the Application filed 19 May 2009 is dismissed.
That the applicants pay the costs of the respondent of and incidental to the application, to be taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 330 of 2009
| RALPH DONOHOO & TROY DONOHOO |
Applicant
And
| MALCOLM BROOKS |
Respondent
REASONS FOR JUDGMENT
On 27 April 2009 the respondent caused a Bankruptcy Notice to be issued by the Official Receiver against the applicants. The Bankruptcy Notice which has been served on the applicants seeks payment of the sum of $17,629.94. That is the amount owing pursuant to a judgment of the District Court of Queensland consequent upon the making of an order for costs against the applicants on 23 May 2008 by Clare DCJ. The costs then ordered have been assessed and certified by a costs assessor. Copies of the order of the Registrar of the District Court made on 14 April 2009 are attached to the Bankruptcy Notice.
The applicants have not relied upon any defect in the Bankruptcy Notice as grounding their application to set it aside. The application to set aside the Bankruptcy Notice dated 19 May 2009 fails to specify any grounds on which the application is brought. In support of the application an affidavit has been filed by the applicants also on 19 May 2009 which attaches an incomplete copy of the Bankruptcy Notice and otherwise simply states:
“1. On 19th December 2008 an offer was made to settle this amount plus an amount relating to mediation from BD2267/06. Neither the respondent nor the respondent’s solicitor replied to us with an amount. We have made another offer on 13 May 2009 to finalise both actions and we are awaiting a reply”
Apparently, subsequent to the making of the order for costs to which I have referred the parties undertook a mediation in November 2008 which led to them executing a Deed on 26 November 2008 to compromise the District Court proceedings. The terms of that deed, a copy of which is attached to Mr Moschella's affidavit, required the applicants to pay $50,000 over 12 equal monthly instalments. Importantly, by clause 9 of that deed it is provided:
“9. The plaintiff and the defendants acknowledge and agree that this settlement does not include any compromise of the costs order made in favour of the plaintiff against the defendants on the 23rd May 2008 by her Honour Judge Clare SC upon the adjournment of the trial of the action, and the defendants acknowledge that they remain liable for those costs which are yet to b assessed.”
The applicants have informed the Court that they have not made payments pursuant to that Deed and have not made payments of the order for costs. Apparently they refused to execute a mortgage contemplated by clause 10 of the Settlement Deed. The applicants say that they have offered to compromise the present proceedings but their offers have not been responded to.
Those matters do not constitute sufficient reason to set aside the Bankruptcy Notice. In the absence of any dispute as to proper service of the Notice or as to the form and contents of the Notice, it seems to me that there is no ground to set it aside. Accordingly, I must dismiss the application.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 25 June 2009
0
0
0