Fitzpatrick v Kidney

[2007] FMCA 942

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FITZPATRICK v KIDNEY [2007] FMCA 942

BANKRUPTCY – Bankruptcy notice – application to set aside – application for review of Registrar’s decision not to set aside – final judgment relating to debt – existence of counterclaim – costs.

Bankruptcy Act 1966 (Cth), s.41

Federal Magistrates Court (Bankruptcy) Rules 2006, r.3.02

Federal Magistrate Court Rules 2001

Crimmins v Glenview Home Units Pty Ltd [1999] FCA 515

Applicant: RAYMOND ARTHUR FITZPATRICK

Respondent: TONY KIDNEY

File number: CAG 11 of 2007

Judgment of: Mowbray FM

Hearing date: 21 May 2007

Delivered at: Canberra

Delivered on: 21 May 2007

REPRESENTATION

Solicitors for the Applicant: Applicant in person

Solicitors for the Respondent: Gillespie-Jones & Co

ORDERS

1. The application for review filed on 10 April 2007 be dismissed.

2. The applicant pay the respondent’s costs fixed in the sum of $3,915.00 by 22 June 2007

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAG 11 of 2007

RAYMOND ARTHUR FITZPATRICK

Applicant

And

TONY KIDNEY

Respondent

REASONS FOR JUDGMENT

1. This is an ex tempore judgment which has been revised and edited from the transcript.  The judgment was delivered on 21 May 2007 with short additional reasons and a decision on costs on 22 May 2007.

2. On 13 February 2007, at the request of Mr Kidney, the creditor and respondent in these proceedings, the Official Receiver issued a bankruptcy notice to Mr Fitzpatrick, the debtor and applicant.  The debt in the schedule was $8,110.76 which resulted from:

   ·orders made by Master Harper in the ACT Supreme Court on 14 February 2003 for costs against the applicant

   ·orders made by Connolly J in the ACT Supreme Court on 6 February 2004 for costs against the applicant

   ·a certificate of taxation for these costs made by the Deputy Registrar of the ACT Supreme Court on 1 November 2004. 

3. Following the issue of the bankruptcy notice the applicant applied to this Court on 5 March 2007 to have the bankruptcy notice set aside.  This was opposed by the respondent in a notice of opposition filed on 28 March 2007.  On 29 March 2007 Registrar Hedge dismissed the application and ordered costs against the applicant.  On 10 April 2007 the applicant sought review of that decision.

4. As far as I can ascertain the application to set aside the bankruptcy notice relies principally on two grounds: 

   ·there has been no final judgment in relation to the debt, and

   ·the applicant may have a counterclaim. 

   There is no suggestion that the bankruptcy notice was defective in any other respect.

Preliminary questions

1. There are two preliminary issues with which I should deal before turning to the more substantial matters.

2. When I raised the question of the applicant’s current proceedings before the ACT Court of Appeal, he sought to give oral evidence to make up for what he seemed to think was a deficiency in the affidavit evidence that he had put before the Court.  I refused that application for the following reasons:

   ·on 26 April 2007 I made orders that the…