Gibbs, Alan Harry v Triscott, Paul Anthony - [1996] FCA 895

ALAN HARRY GIBBS v. PAUL ANTHONY TRISCOTT
No. QG 188 of 1995
FED No. 895/96
Number of pages - 5
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
RYAN, WHITLAM AND KIEFEL JJ

CATCHWORDS

Bankruptcy - bankruptcy notice - whether appellant had a cross-demand for wrongful prosecution - whether bankruptcy notice should be set aside - whether bankruptcy notice in correct form - whether costs order of Court of Appeal is a "final order" enforceable by execution - bankruptcy notice founded on costs certificate

Bankruptcy Act 1966 ss 40(1)(g), 52

Re McGregor; McGregor v Clancy and Triado Pty (1991) 100 ALR 431 Dist
Stubberfield v Paradise Grove Pty Ltd (unreported 22 May 1996) Refd

HEARING

BRISBANE, 22 April 1996
#DATE 16:10:1996
#ADD 21:10:1996

The Appellant appeared in person

Counsel for the respondent: Mr M.D. Martin

Solicitors for the respondent: Baker Johnson

ORDER

THE COURT ORDERS:

1. That the appeal be dismissed.

2. That the appellant pay the respondent's costs of the appeal such costs to be taxed in default of agreement.

3. That the time for compliance with the bankruptcy notice issued on 26 October 1993 be extended until the expiration of 14 days from the date of this order.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

RYAN, WHITLAM AND KIEFEL JJ This is an appeal from an order of Drummond J refusing to set aside a bankruptcy notice founded on a costs certificate for $3,166.86 issued out of the Supreme Court of Queensland as a result of an unsuccessful appeal by the present appellant, Mr Gibbs, to the Court of Appeal. Mr Gibbs contended before the learned primary Judge that he had a counterclaim, set-off or cross-demand against the respondent, Mr Triscott, for unliquidated damages for wrongful prosecution. Mr Triscott is a solicitor who had acted on Mr Gibbs' instructions in relation to a company, H.B. Homes Pty Ltd, of which Mr Gibbs was a director. Mr Gibbs has steadfastly maintained throughout a myriad of proceedings that the liability on Mr Triscott's original bill of costs was solely that of the company and had never attached to himself personally. Should the Court have been satisfied that the appellant has a cross-demand?

2. The learned primary Judge accepted that the cross-demand which Mr Gibbs sought to invoke could not have been raised in the proceedings in the Court of Appeal in which the foundational order for costs was made. Accordingly, he identified in this way the question for resolution on the application to set aside the bankruptcy notice: The question for me is whether Mr. Gibbs in his affidavit filed 3 December, 1993, together with the material in his affidavits filed on 15 December, 1993 and 15 February, 1993 that can properly be regarded as supplementing the claims made in his first affidavit, has satisfied me that he has a cross-demand against Mr. Triscott of the kind referred to in s. 40(1)(g) of the…

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.

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Details

Case: [1996] FCA 895
Decision Date: 16 OCTOBER 1996

CaseChat Overview and Summary

The appellant, Alan Harry Gibbs, contested the validity of a bankruptcy notice issued against him by the respondent, Paul Anthony Triscott. The notice was grounded on a costs certificate. The case was heard in the Full Court of the Federal Court of Australia. The appellant argued that the notice should be set aside on several grounds, including the absence of a cross-demand for wrongful prosecution, incorrect form of the notice, and the question of whether the costs order from the Court of Appeal constituted a "final order" enforceable by execution.

The court needed to determine whether the appellant had a valid cross-demand for wrongful prosecution that should have been considered before issuing the bankruptcy notice. It also had to assess whether the notice was correctly formatted and if the costs order from the Court of Appeal was indeed a final order. The court examined the legal requirements for the form of a bankruptcy notice and the circumstances under which a cross-demand could be relevant. It also considered whether the order from the Court of Appeal, which was based on a costs certificate, met the criteria to be enforceable by execution.

The court found that the appellant did not have a valid cross-demand for wrongful prosecution that needed to be considered before issuing the bankruptcy notice. It concluded that the notice was in the correct form and that the costs order from the Court of Appeal was a final order enforceable by execution. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal. Additionally, the court extended the time for compliance with the bankruptcy notice by 14 days from the date of the order.

The court's final orders were to dismiss the appeal, require the appellant to pay the respondent's costs of the appeal, and extend the time for compliance with the bankruptcy notice. The costs of the appeal were to be taxed if the parties could not agree on the amount.

Orders

Orders of the court

THE COURT ORDERS:

1. That the appeal be dismissed.

2. That the appellant pay the respondent's costs of the appeal such costs to be taxed in default of agreement.

3. That the time for compliance with the bankruptcy notice issued on 26 October 1993 be extended until the expiration of 14 days from the date of this order.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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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