Hall v Xhana Pty Ltd

[2016] FCCA 2001

FEDERAL CIRCUIT COURT OF AUSTRALIA

HALL v XHANA PTY LTD [2016] FCCA 2001

Catchwords:
BANKRUPTCY – Setting aside bankruptcy notice by consent.

Legislation:

Bankruptcy Act 1966, s.30

Applicant: DANNY GORDON HALL

Respondent: XHANA PTY LTD

File Number: SYG 3355 of 2015

Judgment of: Judge Dowdy

Hearing date: 4 August 2016

Date of Last Submission: 4 August 2016

Delivered at: Sydney

Delivered on: 4 August 2016

REPRESENTATION

Counsel for the Applicant: Mr K Tang of Counsel

Counsel for the Respondent: Mr  McGrath

Solicitors for the Respondent: Pateman Legal

ORDERS OF THE COURT

1. That Bankruptcy notice BN186281 issued on 18 November 2015 be set aside.

2. The proceeding is otherwise dismissed.

3. That there be no order as to costs to the intent that each party bears his and its own costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3355 of 2015

DANNY GORDON HALL

Applicant

And

XHANA PTY LTD

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. In this matter, by an amended application filed on 12 February 2016 the applicant, Mr Danny Hall, sought orders setting aside bankruptcy notice BN186281 issued on 18 November 2015 on the grounds that the bankruptcy notice was an abuse of process, and that he also had a counter-claim, set off, or cross-demand which exceeded the amount referred to in the bankruptcy notice.

2. To that amended application, the respondent creditor filed on 21 March 2016 a notice of opposition asserting that the bankruptcy notice was not an abuse of process and that the applicant debtor did not have a counter-claim, set-off or cross-demand exceeding the alleged debt.  In those circumstances, the matter came before me on 9 June for hearing, but it was not ready to proceed and did not proceed for reasons which it is unnecessary for me to go into today, and the matter was adjourned for hearing on that date to today.

3. Yesterday, my Chambers received a form of short minutes of order that, whilst not expressed to be by consent, were clearly of a consensual nature and gave the relief sought by Mr Hall in his amended application other than an order for costs in his favour. 

4. This morning, Mr Tang of Counsel has appeared for Mr Hall, and Mr McGrath has appeared for the respondent. 

5. Mr Tang confesses that he has only very recently come into the matter, but he tells me that, as far as he understands his instructions, Mr Hall is content with these orders and asks that they be made, and I note that Mr Hall is at the back of the Court instructing Mr Tang directly. Both parties ask me to make these orders by consent. Whilst there is no express power to set aside a bankruptcy notice, such a power arises by necessary implication and is within the general powers of this Court as a Court of Bankruptcy conferred by s.30(1) of the Bankruptcy Act 1966 (Cth).

6. The power to set aside a bankruptcy notice is a discretionary one, but as both parties ask me to make it and I am told there are no other reasons why I should not, I will do so.

7. Accordingly, by consent, I make the following orders:

   a)Bankruptcy notice BN186281 issued on 18 November 2015 is set aside.

   b)The proceeding is otherwise dismissed.

   c)I make no order as to costs to the intent that each party bears their own costs.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 4 August 2016