Goodman v Westpac Banking Corporation

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOODMAN v WESTPAC BANKING CORPORATION [2010] FMCA 714

BANKRUPTCY – Application to set aside Registrar’s order dismissing applicant’s application to set aside a bankruptcy notice – application dismissed by Registrar for non-attendance of applicant – reasonable excuse for non-attendance – however no reasonable prospect of success on substantive application to set aside the bankruptcy notice – application to set aside Registrar’s order dismissed.

Bankruptcy Act 1966, s.41(7)
Federal Magistrates Court Rules 2001, r.16.05(2)(a)

Applicant: MORRIS GOODMAN

Respondent: WESTPAC BANKING CORPORATION

File Number: MLG 956 of 2010

Judgment of: O’Dwyer FM

Hearing date: 6 September 2010

Date of Last Submission: 6 September 2010

Delivered at: Melbourne

Delivered on: 6 September 2010

REPRESENTATION

The Applicant: In person

Counsel for the Respondent: Mr Nicol

Solicitors for the Respondent: Gadens Lawyers

ORDERS

1. The application for review of Registrar Luxton’s is order made on

   
   

   26 July 2010 is dismissed.

2. The Applicant pay the Respondent’s costs in accordance with Order 62 of the Federal Court Rules. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 956 of 2010

MORRIS GOODMAN

Applicant

And

WESTPAC BANKING CORPORATION

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter comes before me today on an application filed on 26 July 2010 to set aside a decision made by Registrar Luxton on that day to dismiss a substantive application filed on 5 July 2010, in which
   Mr. Goodman seeks to have a bankruptcy notice set aside. The application to set aside the bankruptcy notice was dismissed for the non-attendance of the Applicant, Mr. Goodman.

2. The first issue for me to determine is whether or not, under Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001 I ought to set aside the decision of Registrar Luxton. To do so, I have to consider whether or not there was a reasonable excuse on the part of the Applicant for not attending on 26 July 2010, and also, and this is a very necessary requirement for the exercise of my discretion as to whether I should set aside the Registrar’s dismissal, to determine whether there is a reasonable prospect of success, should that decision of Registrar Luxton be set aside, in respect of substantive application to set aside the bankruptcy notice.

3. In relation to the reasonable excuse, there is no doubt that there is a reasonable excuse for the non-attendance of Mr Goodman; he being directed to the wrong Court room where matrimonial proceedings involving parties with the same name were taking place. By the time he discovered the correct location of the Court for his proceeding, his application had been dismissed for his non-attendance. 

4. The other requirement though is more problematic.  There is a long history of litigation between the parties, which also include not only Mr. Morris Goodman and Westpac, but also a company known as Worldwide Enterprises Pty Ltd and Mr. Goodman’s wife, Ms. Greta Goodman.  The company, incidentally, is the business that was, I understand, owned and run by Mr Goodman to facilitate…