Harrison v Schipp

Case [2001] FMCA 70

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARRISON v SCHIPP  [2001] FMCA 70

BANKRUPTCY – Application to set aside bankruptcy notice and for an extension of time – whether equity proceedings based on alleged new evidence is a proceeding to set aside the judgment upon which the bankruptcy notice was based – whether those proceedings commenced bona fide – prospects of success of those proceedings considered – considerations relevant to the exercise of the Court’s discretion to extend time for compliance with the bankruptcy notice – whether the identity of the applicant as a public figure is a relevant consideration.

Bankruptcy Act 1966 (Cth), ss.30, 41(6A), 41(6C)
Corporations Law, s.459E
Local Government Act 1993 (NSW), s.234(e)
Supreme Court Act (1970) (NSW), s.75A(7)
Supreme Court Rules

Atkinson v Oakleigh Holdings Pty Ltd [2000] FCA 1547
Boylan v Farthing and Anor (unreported, Federal Court of Australia, 23 October 1998, per Mansfield J)
Brunningshausen v Glavanics (unreported, Federal Court of Australia, 3 March 1998, per Emmett J)
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
Charles Bright & Co Limited v Sellar [1904] 1 KB 6
Conway v Jackson [2001] FCA 230
Council of City of Greater Wollongong v Cowan (1955) 93 CLR 435
In re Sant Nazaire Company (1879) 12 ChD 88
McDonald v McDonald (1965) 113 CLR 529
Munro Schneider Associates (Inc) & Anor v No 1 Raberem Pty Ltd & Ors
(No 2) (1992) 37 FCR 234
Pak Sun Liew v JNS Technologies (unreported, Federal Court of Australia, 18 October 1999, per Kenny J)
Re Barrel Enterprises & Ors [1972] 3 AllER 630
Re Lentini; ex parte Lentini v CSR Limited (1991) 29 FCR 363
Umina Investments Pty Ltd v Westpac Banking Corporation (1998) 84 FCR 454

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Applicant: GEORGE ANDREW HARRISON
Respondent: DELCIE JOAN SCHIPP
File No:   SZ 384 of 2001
Delivered on: 4 September 2001
Delivered at: Sydney
Hearing Dates: 22 and 23 August 2001
Judgment of: Driver FM

REPRESENTATION

Counsel for the Applicant: Mr J Chippindall
Solicitors for the Applicant: Mr S Drummond
Blake Dawson Waldron
Counsel for the Respondent: Mr J Hennessy
Solicitors for the Respondent: Mr M Addison
Dibbs Baker Gosling

ORDERS

  1. The application is dismissed.

  2. The applicant is to pay the respondent’s costs of the application, including any reserved costs. Those costs are payable pursuant to Rule 21.10 of the Federal Magistrates Court Rules, and for the purposes of Rule 21.15 the Court certifies that it was reasonable to employ an advocate to appear in the proceeding.

  3. Settlement and entry of these orders may be effected pursuant to Order 36 of the Federal Court Rules.

  4. Orders 1 and 2 are stayed until 18 September 2001. 

  5. Pursuant to section 41(6A) of the Bankruptcy Act 1966 (Cth), time for compliance with the bankruptcy notice is extended until 18 September 2001.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SZ 384 of 2001

GEORGE ANDREW HARRISON

Applicant

And

DELCIE JOAN SCHIPP

Respondent

REASONS FOR JUDGMENT

Introduction

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Harrison v Schipp [2001] FMCA 70
Case
[2001] FMCA 70
Decision Date

CaseChat Overview and Summary

The case of Harrison v Schipp involved the applicant, Harrison, seeking to challenge a bankruptcy notice issued against him by the respondent, Schipp. The dispute was heard in the Federal Magistrates Court, where the primary issue was whether the application made by the applicant to set aside the bankruptcy notice should be granted. A secondary issue was whether the applicant was entitled to an extension of time to comply with the bankruptcy notice.

The court began by examining the legal criteria that must be met for an application to set aside a bankruptcy notice to succeed. It was necessary for the applicant to demonstrate that there were reasonable prospects of establishing a valid defence to the bankruptcy notice. The court assessed the merits of the applicant's arguments and found that they did not satisfy the required threshold. Furthermore, the court considered whether an extension of time was warranted under the circumstances. Given that the application to set aside the notice was dismissed, the court concluded that an extension of time was not justified.

The court dismissed the application and ordered that the applicant pay the respondent's costs of the application. The court further certified that it was reasonable to employ an advocate in the proceeding. Additionally, the time for compliance with the bankruptcy notice was extended until 18 September 2001, pursuant to the relevant provisions of the Bankruptcy Act 1966. The orders for costs and the extension of time were stayed until the same date.

Orders

Orders of the court

1.

The application is dismissed.

2.

The applicant is to pay the respondent’s costs of the application, including any reserved costs. Those costs are payable pursuant to Rule 21.10 of the Federal Magistrates Court Rules, and for the purposes of Rule 21.15 the Court certifies that it was reasonable to employ an advocate to appear in the proceeding.

3.

Settlement and entry of these orders may be effected pursuant to Order 36 of the Federal Court Rules.

4.

Orders 1 and 2 are stayed until 18 September 2001.

5.

Pursuant to section 41(6A) of the Bankruptcy Act 1966 (Cth), time for compliance with the bankruptcy notice is extended until 18 September 2001.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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