Ferris v Bilic - [2014] FCCA 781

FEDERAL CIRCUIT COURT OF AUSTRALIA

FERRIS v BILIC

[2014] FCCA 781

Catchwords:

BANKRUTPCY – Bankruptcy notice – s.41 Bankruptcy Act 1966 (Cth) – whether there was a fatal defect in the judgment supporting the notice – authentication of judgment supporting the notice – absence of signature of a court officer authenticating judgment – judgment not properly certified – order not final – notice defective – notice set aside – no order as to costs.

Legislation:

Bankruptcy Act 1966 (Cth), ss.41, 306
Bankruptcy Regulations 1996 (Cth)
Building and Construction Industry Payments Act 2004 (Qld), ss.30, 31
Uniform Civil Procedure Rules 1999 (Qld), rr.658, 661, 793, 978

Adams v Northern Plumbing (NQ) Pty Ltd (2010) 245 FLR 359

Applicant:

PAUL PHILIP FERRIS

Respondent:

IVAN BILIC ATF THE BILIC TRUST TRADING AS IBS INTERIOR LININGS

File Number:

BRG 166 of 2014

Judgment of:

Judge Burnett

Hearing date:

19 March 2014

Date of Last Submission:

19 March 2014

Delivered at:

Brisbane

Delivered on:

24 March 2014

REPRESENTATION

Counsel for the Applicant:

Mr S. Fisher

Solicitors for the Applicant:

Romans & Romans Lawyers

Solicitors for the Respondent:

McLaughlins Lawyers

ORDERS

The Application filed on 26 February 2014 be allowed.
The Bankruptcy Notice BN 165562 issued 27 September 2013 be set aside.
No order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 166 of 2014

PAUL PHILIP FERRIS

Applicant

And

IVAN BILIC ATF THE BILIC TRUST TRADING AS IBS INTERIOR LININGS

Respondent

REASONS FOR JUDGMENT

The applicant applies to set aside Bankruptcy Notice 165562 issued 27 September 2013. The application is opposed. In his written submissions, counsel for the applicant advanced two grounds. The first was that there was a fatal defect in the judgment supporting the notice, and the second related to defects in the affidavit attesting to service. The applicant has appropriately abandoned the second ground, and now pursues relief solely in respect of the first ground. The supporting judgment was purportedly entered by the creditor following a successful adjudication decision made under the Building and Construction Industry Payments Act 2004 (Qld) (“BCIPA”).
The issue in this instance is whether the judgment entered is a proper judgment being compliant with the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”). The applicant debtor contends that it is not. He contends that its form does not satisfy the mandatory requirements provided for in s.41(2) Bankruptcy Act 1966 (Cth), which requires that the notice comply with the form provided for in the Bankruptcy Regulations 1996 (Cth). They in turn require a copy of the final judgment to be attached. In any event, s.41(1) also provides that the notice can only issue upon the creditor having a final judgment.
It is accepted that non-compliance with the mandatory requirements of the form is fatal to the efficacy of a notice. The issue here concerns the efficacy of the judgment. The applicant contends that it is not an efficacious judgment as it does not comply with the requirements of the UCPR. That matter is…

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.

Keep reading for free

Create a free CaseChat account to read Ferris v Bilic and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FCCA 781
Decision Date: 24 March 2014

CaseChat Overview and Summary

In the matter of *Ferris v Bilic*, heard by Judge Burnett, the applicant sought to set aside a bankruptcy notice. The dispute centred on the validity of the judgment upon which the bankruptcy notice was based, with the applicant arguing that the judgment was defective and therefore incapable of supporting the notice.

The primary legal issue before the court was whether the judgment, purportedly entered pursuant to section 31 of the *Building and Construction Industry Payments Act 1999* (Qld) (BCIPA), was properly authenticated and therefore efficacious. Specifically, the court had to determine if the absence of a signature from a court officer on the adjudication certificate, filed as a judgment, rendered the judgment invalid and consequently the bankruptcy notice defective.

Judge Burnett reasoned that the authentication of a judgment is a mandatory requirement for its efficacy. Rule 978 of the Uniform Civil Procedure Rules (Qld) (UCPR) stipulates that all documents issued by the court must be signed by an appropriate officer and stamped with the court seal. The court found that the adjudication certificate, which was filed as a judgment under s 31(1) BCIPA, lacked the signature of a court officer. This absence was deemed significant and determinative, as the signature serves to confirm and authenticate that the adjudication certificate has been properly filed as a judgment, consistent with the requirements of s 31(2) BCIPA, including the accompanying affidavit. The court accepted the applicant's submission that the filing of the certificate as a judgment was inchoate without proper authentication, distinguishing the present case from *Adams v Northern Plumbing (NQ) Pty Ltd*.

Consequently, the court found the bankruptcy notice to be defective due to the invalidity of the underlying judgment. The bankruptcy notice was set aside, and no order was made as to costs.

Orders

Orders of the court

Full text does not contain this section.

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

It is accepted that non-compliance with the mandatory requirements of the form is fatal to the efficacy of a notice. The issue here concerns the efficacy of the judgment. The applicant contends that it is not an efficacious judgment as it does not comply with the requirements of the UCPR. That matter is in contention. Specifically, the judgment itself is one purportedly entered pursuant to s.31 BCIPA. Relevantly, that section provides: “Filing of adjudication certificate as judgment debt(1) An adjudication certificate may be filed as a judgment for a debt, and may be enforced, in a court of competent jurisdiction. (2) An adjudication certificate can not be filed under this section unless it is accompanied by an affidavit by the claimant stating that the whole or a part of the adjudicated amount has not been paid at the time the certificate is filed.” Mr Fisher for the applicant contends that the purported final order attached to the bankruptcy notice is of no effect because of r.978 UCPR, which provides:“Issue of Documents(1) Each document issued by the court must be signed by the appropriate officer for the court and stamped with the court seal.(2) If a document to be stamped with a court seal has 2 or more pages, only 1 page of the document is required to be stamped.” The certificate was submitted to the Registrar of the Queensland Magistrates Court by the creditor personally. Its form bears the seal of the court, but the document itself, being that attached to the bankruptcy notice as the final order or judgment, does not bear any signature of a court officer. In my view, for reasons that follow, the absence of a signature of a relevant officer of the Court is significant and determinative. The presence of a signature serves to confirm and authenticate the matters required by s.31(1). That is, the adjudication certificate has been filed as a judgment consistent with s.31(2). As I have noted, s.31(2) requires that the certificate be accompanied by an affidavit stating that the whole or part of the adjudicated amount has not been paid at the time the certificate is filed. Upon the filing of the affidavit and the certificate an important assessment must take place, that is, that those matters are assessed as correct. In my view, that assessment is no trifling issue. That matter is fundamental to the efficacy of the final order or judgment. It is on the strength of that assessment that the certificate may be “filed as a judgment,” as referred to in s.31(1). Significantly, s.31(1) appears to be in two parts. The first is that part I have just mentioned, namely, the certificate being “filed as a judgment for a debt,” and the second is that the judgment “may be enforced” in a court of competent jurisdiction. It follows on that view that the filing itself is inchoate, and that further action must follow to enforce the certificate filed as a judgment. This is, in essence, the point made by Mr Fisher, and a point that he contends, and I accept, distinguishes this case from the decision in Adams v Northern Plumbing (NQ) Pty Ltd,[1] where, although the question of the filing of the judgment was considered, the issue of whether or not a judgment was inefficacious for the absence of a signature was not. [1] (2010) 245 FLR 359.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.