Gough v Myall Pty

[2001] FMCA 68

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GOUGH v MYALL PTY                   [2001] FMCA 68

BANKRUPTCY – Application to set aside Bankruptcy Notice – going behind judgment – application dismissed

Wren v Mahony (1972) 126 CLR 212
Corney v Brien (1951) 84 CLR 343.
Longo ex parte Longo [1995] 57 FCR 523).
Harrison v Charalambous (1999) FCA 902

Applicant: TONY GOUGH

Respondent: MYALL PTY

File No:   MZ 307 of 2001

Delivered on: 2 July 2001

Delivered at: Melbourne

Hearing Date: 2 July 2001

Judgment of: McInnis FM

REPRESENTATION

Applicant: In Person

Counsel for the Respondent: Ms K Knight

Solicitors for the Respondent: Cornwall Stodart

ORDERS

1. That the application be dismissed; and

2. That the applicant pay the respondent's costs of the application.

3. I direct that the reasons that I have just given be transcribed and upon revision shall constitute my reasons for judgment. 

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MZ 241 of 2001

TONY GOUGH

Applicant

And

MYALL PTY

Respondent

REASONS FOR JUDGMENT

Ex tempore

1. This is an application by Mr Gough, the applicant, who seeks to set aside a bankruptcy notice, VN 575 of 2001, which was received by him on 18 April 2001.  In his application filed with the court and dated 8 May 2001, Mr Gough applies to set aside the bankruptcy notice and has indicated to this court that he is not the person to whom the account should be directed. 

2. In support of his application Mr Gough relies upon an affidavit sworn by him on the 8th day of May 2001 and a further affidavit sworn by him on 12 June 2001. 

3. At the outset I should indicate that Mr Gough appeared in person, and indeed it is noted that the judgment which was the subject of the bankruptcy notice was a judgment obtained by the respondent in a Magistrates Court, and on that occasion likewise Mr Gough appeared unrepresented.  It is important in cases of this kind to make due allowance for the fact that the applicant is unrepresented and to not look with perhaps the same degree of scrutiny at affidavit material which has been filed and relied upon in those circumstances. 

4. Mr Gough essentially asserts that the court should in this case go behind the judgment which was obtained and which forms the basis of the bankruptcy notice.  He asserts that at all times he was not in fact a client of the respondent and to that extent was not liable for the judgment obtained against him. 

5. It is appropriate in a case of this kind to set out briefly the chronology, which is really not in dispute.  The chronology in this matter, save and except for the issue of whether the respondent was indeed acting as solicitor for the applicant, includes the following in terms of court proceedings.  On 4 April 1996 Cornwall Stodart for the respondent commenced recovery proceedings in the Magistrates Court of Victoria at Melbourne, claiming a sum of $1650 plus interest and costs.  On

   
   

   17 May 1996 that…