Hadden v KETCH Nominees Pty Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HADDEN v KETCH NOMINEES PTY LTD [2005] FMCA 794

BANKRUPTCY – Application to set aside Bankruptcy notice – whether counterclaim/set off could have been set up in local court proceedings.

Bankruptcy Act 1966, ss.40(1)(g), 52
Local Court Act 1904, s.34(1)

Batiste v Lenin (2002) NSWSC 233
Re Stokvis (1934) 7 ABC 53
Re Ling; Ex parte Ling v Commonwealth of Australia (1995) 130 ALR 596
Re Vicini; Ex parte E A Sealey & Co (1982) 64 FLR 323
Re Vitoria; Ex parte Vitoria (1894) 2 QB 387
Re Huston; Ex parte Kendall, McAdam & O'Dwyer (1985) 8 FCR 355

Applicant: HEIDI HADDEN

Respondent: KETCH NOMINEES PTY LTD

File Number: PEG 49 of 2005

Judgment of: McInnis FM

Hearing date: 16 May 2005

Delivered at: Perth

Delivered on: 3 August 2005

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr. D. Skender

Solicitors for the Respondent: Gadens Lawyers

ORDERS

1. The Application filed 10 March 2005 be dismissed.

2. In the event that the Respondent files a creditor’s petition in reliance on the Applicant’s failure to comply with the Bankruptcy Notice dated 11 February 2005 and a sequestration order being made, the Respondent’s costs of the application (including any reserved costs) be paid in priority from the assets of the Applicant as costs of the petition pursuant to s.109 of the Bankruptcy Act 1966 (Cth).

3. Otherwise, the Applicant shall pay the Respondent’s costs of the application (including any reserved costs) to be taxed if not agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 49 of 2005

HEIDI HADDEN

Applicant

And

KETCH NOMINEES PTY LTD

Respondent

REASONS FOR JUDGMENT

1. In this application the Applicant seeks to set aside a bankruptcy notice issued on 11 February 2005 and served on 23 February 2005.  The bankruptcy notice issued at the request of the Respondent Creditor claims that the Applicant owes the Creditor the sum of $3,280.50 and relies upon a judgment of the Local Court of Western Australia on 19 February 2003.  That judgment was based on a claim by the Respondent against the Applicant arising from a failure by the Applicant to pay certain amounts due to the Respondent pursuant to a lease for tavern premises owned by the Respondent.

2. In her application seeking to set aside the bankruptcy notice, the Applicant, who is unrepresented, refers to the notice being "dismissed", and has asserted that she has a genuine counterclaim or set‑off which far exceeds the amount of the judgment and that the judgment was given in her absence.  She further claims in the application that part of her claim in pending Supreme Court proceedings is for $63,866.00 and alleges that she has a total claim of over $400,000.00.  She asserts that the Respondent has admitted owing the Applicant $25,072.00, which after deducting the amount owed in the bankruptcy notice of $3,403.50 leaves a balance in her credit owed by the Creditor to her of $21,669.49.  She further claims in the application that if the bankruptcy notice is…