Glass v Demarco - [1999] FCA 481

FEDERAL COURT OF AUSTRALIA
Glass v Demarco [1999] FCA 481
BANKRUPTCY – validity of bankruptcy notice – whether overstatement of amount of debt – date at which notice is considered to make a claim – whether notice suffers from formal defect or irregularity – whether substantial injustice caused to recipient
PRACTICE AND PROCEDURE – whether applicant should be given opportunity to seek leave to amend grounds of opposition - whether leave to adjourn petition should be granted
Bankruptcy Act 1966 (Cth), s41(5); s306
District Court Act 1973 (NSW), s85
Walsh v Deputy Commissioner of Taxation (1984) 156 CLR 337, considered
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71, considered
Re Manion; ex parte Deputy Commissioner of Taxation (1979) 23 ALR 270, considered
TIBOR THOMAS GLASS v GODFREY CHARLES DEMARCO
NG 8401 OF 1998
EMMETT J
1 APRIL 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG8401 OF 1998

IN THE MATTER OF GODFREY CHARLES DEMARCO

BETWEEN:

TIBOR THOMAS GLASS
Petitioning Creditor

AND:

GODFREY CHARLES DEMARCO
Debtor

JUDGE:

EMMETT J

DATE OF ORDER:

1 APRIL 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The hearing of the petition be adjourned to 21 April 1999 at 10.15 a.m.
2.Leave be given to the debtor to file a Notice of Motion returnable on 21 April 1999 before Emmett J in the form initialled, dated with today’s date and placed with the papers.
3.The debtor file and serve no later than 12 April 1999 any further affidavits on which he seeks to rely on the hearing of the motion.
4.The petitioning creditor file and serve no later than 19 April 1999 any affidavits in answer to the debtor’s affidavits.
5.As a term of granting the adjournment, the sum of $50,000 be paid into court on or before 12 April 1999.
6.Liberty to restore the matter for mention on 14 April 1999 be reserved to the creditor if the sum of $50,000 is not paid into court on or before 12 April 1999.
7.The debtor pay the costs of today.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG8401 OF 1998

IN THE MATTER OF GODFREY CHARLES DEMARCO

BETWEEN:

TIBOR THOMAS GLASS
Petitioning Creditor

AND:

GODFREY CHARLES DEMARCO
Debtor

JUDGE:

EMMETT J

DATE:

1 APRIL 1999

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

I have before me a creditor's petition based on non-compliance with a bankruptcy notice. The bankruptcy notice was issued on 14 October 1998 and was served on the debtor on 5 November 1998. Accordingly, if the bankruptcy notice was a valid bankruptcy notice, there was a failure on 27 November 1998 to comply with the requirements of the bankruptcy notice.
VALIDITY OF BANKRUPTCY NOTICE
The debtor has filed a Notice of Intention to Oppose the Petition on the ground that no act of bankruptcy was committed because the bankruptcy notice…

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: [1999] FCA 481
Decision Date: 1 APRIL 1999

CaseChat Overview and Summary

Glass v Demarco was a matter heard in the Supreme Court of Queensland. The petitioner, Glass, sought to enforce a judgment against the debtor, Demarco. The dispute centred around the enforcement of the judgment debt and the subsequent application for an adjournment by the debtor. The court had to determine whether to grant the debtor's application for an adjournment and, if so, on what terms.

The legal issues before the court were whether the debtor's application for an adjournment should be granted and, if so, what conditions should be imposed to ensure that the adjournment would serve the interests of justice. The court needed to consider the debtor's ability to pay the judgment debt, the reasons for the requested adjournment, and whether any conditions could be imposed to mitigate the petitioner's prejudice.

The court granted the debtor's application for an adjournment, but only on the condition that the debtor paid $50,000 into court before the adjourned hearing date. The court reasoned that the debtor's request for an adjournment was not frivolous and that there were genuine issues to be determined at the hearing. However, the court was concerned about the potential prejudice to the petitioner if the debtor was allowed to adjourn the hearing without making some financial contribution. The court also noted that the debtor had previously failed to make payments towards the judgment debt, which was a factor in imposing the condition of payment into court.

In summary, the court granted the debtor's application for an adjournment but imposed conditions to ensure that the adjournment would serve the interests of justice and mitigate the petitioner's prejudice. The court ordered that the debtor pay $50,000 into court before the adjourned hearing date and that any further affidavits be filed and served within specific timeframes. The court also reserved liberty to the petitioner to restore the matter for mention if the debtor failed to make the required payment.

Orders

Orders of the court

1. The hearing of the petition be adjourned to 21 April 1999 at 10.15 a.m.

2. Leave be given to the debtor to file a Notice of Motion returnable on 21 April 1999 before Emmett J in the form initialled, dated with today’s date and placed with the papers.

3. The debtor file and serve no later than 12 April 1999 any further affidavits on which he seeks to rely on the hearing of the motion.

4. The petitioning creditor file and serve no later than 19 April 1999 any affidavits in answer to the debtor’s affidavits.

5. As a term of granting the adjournment, the sum of $50,000 be paid into court on or before 12 April 1999.

6. Liberty to restore the matter for mention on 14 April 1999 be reserved to the creditor if the sum of $50,000 is not paid into court on or before 12 April 1999.

7. The debtor pay the costs of today.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG8401 OF 1998

IN THE MATTER OF GODFREY CHARLES DEMARCO
BETWEEN:	TIBOR THOMAS GLASS Petitioning Creditor
AND:	GODFREY CHARLES DEMARCO Debtor
JUDGE:	EMMETT J
DATE OF ORDER:	1 APRIL 1999
WHERE MADE:	SYDNEY

JUDGE:	EMMETT J
DATE:	1 APRIL 1999
PLACE:	SYDNEY