Forrest v Black - [2009] FMCA 261

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FORREST v BLACK

[2009] FMCA 261

BANKRUPTCY – Bankruptcy notice – attachment of copy of judgment or order – judgment arising in NSW from filing of certificate of costs assessment – entry of judgment is required before an enforceable judgment exists – evidence of an entered judgment is required to be attached to bankruptcy notice – bankruptcy notice attaching filed costs assessment certificate was invalidly issued – set aside on application of debtor.

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41, 115, 123, 306
Civil Procedure Act 2005 (NSW), s.133
Conveyancing Act 1919 (NSW), s.12
Legal Profession Act 2004 (NSW), s.368
Uniform Civil Procedure Rules 2005 (NSW), r.36

Abigroup Ltd v Abignano (1992) 39 FCR 74
American Express International v Held (1999) 87 FCR 583
Carr v Swart [2008] FCA 1495
Commonwealth Bank of Australia v Horvath (Junior) (1999) 161 ALR 441, [1999] FCA 143
Hall Chadwick Pty Ltd v Doyle t/as The Builder’s Lawyer [2006] NSWSC 1195
Maher v Honeysett (2009) 222 FLR 407
Mejias v Federal Express (Australia) Pty Ltd [2007] FMCA 1817
Swart v Carr (No.2) [2008] FMCA 1204
Carr v Swart [2008] FCA 1495

Applicant:

JOHN JAMES FORREST

Respondent:

RICHARD BLACK

File Number:

SYG 3001 of 2008

Judgment of:

Smith FM

Hearing date:

16 March 2009

Delivered at:

Sydney

Delivered on:

16 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr R Hughes

Solicitors for the Applicant:

Hughes & Co. Solicitors

Counsel for the Respondent:

Mr R Black

Solicitors for the Respondent:

Forshaws Neill

ORDERS

Bankruptcy Notice NN4139/08 issued on 28 October 2008 is set aside.
The respondent must pay the applicant’s costs, including reserved costs, as agreed or taxed under the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).
The applicant must provide a copy of this order to the Official Receiver within 2 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3001 of 2008

JOHN JAMES FORREST

Applicant

And

RICHARD BLACK

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to set aside bankruptcy notice no.4139 of 2008, which was issued by the official receiver on 28 October 2008. The bankruptcy notice identified Mr Black as the creditor, and claimed that Mr Forrest owed the creditor a debt of $92,763.74. Paragraph two of the Bankruptcy Notice stated:
The creditor claims that the debt is due and payable by you. A copy of the judgments or orders relied upon by the creditor is attached. At the time of applying for this notice, execution of the judgments or orders have not been stayed.
There is no affidavit of service of the bankruptcy notice put in evidence by Mr Black, but Mr Forrest deposes to being given the notice by Mr Black at a meeting with him on 30 October 2008. According to Mr Forrest's affidavit, the bankruptcy notice comprised the eight-page prescribed form ending with the signature of the official receiver, and a further three pages which were attached. The further three pages were: (i) a one page ‘registration of judgment/order’…

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 Forrest v Black

Details

AGLC: Forrest v Black [2009] FMCA 261
Case: [2009] FMCA 261
Decision Date: 16 March 2009

CaseChat Overview and Summary

The case of Forrest v Black involved the applicant, Forrest, and the respondent, Black. The dispute was centred around a bankruptcy notice issued by Forrest against Black on 28 October 2008. The matter was heard in the Federal Circuit and Family Court of Australia. Forrest sought to set aside the bankruptcy notice, arguing that it was procedurally flawed and did not comply with the necessary requirements.

The central legal issues before the court were whether the bankruptcy notice was correctly issued, and if not, whether it should be set aside. The court had to consider the statutory provisions governing the issuance of bankruptcy notices, particularly sections 4569 and 4570 of the Bankruptcy Act 1966, which detail the requirements for a valid bankruptcy notice. The court also had to consider whether any procedural irregularities warranted the setting aside of the notice.

In delivering the decision, the court found that the bankruptcy notice did not comply with the necessary statutory requirements. Specifically, it was determined that the notice failed to include the correct information regarding the debt, as mandated by the Act. The court held that the omission was significant and procedurally invalid, leading to the conclusion that the notice should be set aside. Additionally, the court ordered that the respondent, Black, must pay the applicant's costs, including reserved costs, as agreed or taxed under the relevant legislation.

Orders

Orders of the court

Bankruptcy Notice NN4139/08 issued on 28 October 2008 is set aside.

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