Glover v Flower

[2005] FCA 970

FEDERAL COURT OF AUSTRALIA

Glover v Flower [2005] FCA 970

IN THE MATTER OF GARY PHILIP GLOVER
GARY PHILIP GLOVER v BRETT ANDREW FLOWER and ELLE VALDES
NSD 848 of 2005

WILCOX J
12 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 848 of 2005

IN THE MATTER OF GARY PHILIP GLOVER:

BETWEEN:

GARY PHILIP GLOVER
APPLICANT

AND:

BRETT ANDREW FLOWER
FIRST RESPONDENT

ELLE VALDES
SECOND RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

12 JULY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application to set aside the bankruptcy notice be dismissed with costs.

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	NSD 848 of 2005

IN THE MATTER OF GARY PHILIP GLOVER

BETWEEN:

GARY PHILIP GLOVER
APPLICANT

AND:

BRETT ANDREW FLOWER
FIRST RESPONDENT

ELLE VALDES
SECOND RESPONDENT

JUDGE:	WILCOX J
DATE:	12 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application to set aside a bankruptcy notice. However, what the applicant, Gary Philip Glover, wishes to do is to satisfy the Court that he has a counter-claim, set off or cross-demand equal to, or exceeding, the amount of the judgment debt referred to in a bankruptcy notice served upon him by the respondents, Brett Andrew Flower and Elle Valdes: see s 40(1)(g) of the Bankruptcy Act 1966 (‘the Act’).

2. The judgment debt arises out of a decision of the Consumer Claims Tribunal (‘the Tribunal’) that was registered in the Local Court at Sutherland. The applicant has applied to the Supreme Court of New South Wales for an order setting aside the order of the Tribunal. He relies, in part, on that circumstance in arguing this application. However, nothing in the Act entitles the Court to set aside a bankruptcy notice on the basis that there is a pending application to set aside the relevant judgment. The Supreme Court application is presently irrelevant. Of course, if the Supreme Court application is successful, there will be a consequential order setting aside the Local Court judgment. In that event, neither the Tribunal's order or the Local Court judgment could be used as the basis of a bankruptcy petition.

3. The ‘counter-claim, set off or cross-demand’ asserted by the applicant is a workers compensation claim against the respondents.  The applicant apparently sustained an injury whilst working on a building project undertaken at their request.  The judgment against him arises out of that building project.

4. The applicant claims that his injuries were substantial, he has incurred significant medical expenses and lost time from work.  There is medical evidence that suggests a significant injury.  However, nobody has yet quantified the value of the claim.  It is, therefore, impossible to say whether or not it would equal or exceed the amount payable under the judgment obtained in the Sutherland Local Court.

5. There is also an issue whether the debtor was a ‘worker’ or a ‘deemed worker’ within the meaning of the relevant workers compensation legislation.  I have seen a copy of the agreement made between the parties.  In light of that agreement, it seems difficult to conclude there was an employer/employee relationship, in the common understanding of that term.  However, it is conceivable that the applicant was a deemed employee of the respondents and, therefore, entitled to workers compensation benefits. 

6. It seems the respondents did not hold workers' compensation insurance.  If the applicant was a deemed employee, this would presumably give him rights against the uninsured fund.  The fund might then have a good action against the respondents for indemnity.

7. I have not gone into the detail of this matter.  I did not ask Mr Johnson, counsel for the respondents, to address me about it.  It was not appropriate to do so.  These matters will be resolved in a claim that has already been made to the Workers Compensation Commission.  From my perspective, it is enough to say there is not before the Court material that entitles me to conclude that the applicant has a claim against the respondents in an amount equal to, or exceeding, the sum claimed.

8. I have some sympathy for the applicant. He has apparently sustained a significant injury. I think it is desirable the issues I have mentioned be resolved before he is faced, if he eventually is, with the prospect of going bankrupt. However, to some extent, this depends on what the parties choose to do. The only question for me is whether I am satisfied of the exception contained in para (g) of s 40(1) of the Act. I am not so satisfied. Accordingly, the application must be dismissed.

9. I order that the application be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            18 July 2005

The Applicant appeared in person.
Counsel for the Respondent:	Mr J T Johnson
Solicitors for the Respondent:	Yates Beaggi Lawyers
Date of Hearing:	12 July 2005
Date of Judgment:	12 July 2005