Hewitt v McKensey - [2005] FMCA 469

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HEWITT v McKENSEY & ORS

[2005] FMCA 469

BANKRUPTCY – Application to set aside Bankruptcy Notice – where the parties entered into a settlement agreement – where there is a significant disagreement between the parties as to what sum of settlement monies is likely to be owing if any – where the matter has been referred to arbitration - whether or not the appellant had a counter claim, set off or cross demand equal to or exceeding the amount in the Bankruptcy Notice – whether or not the cross claim was one which could have been brought in the original proceedings – whether the applicant simply overlooked the issue of a cross claim.

Bankruptcy Act 1996, ss.40(1)(g), 41(7)
Evidence Act 1995, s.131

Glew v Harrowell, in the matter of Glew [2003] FCA 373
Re Ling; Ex parte Ling v Commonwealth of Australia (1995) 58 FCR 129
Re James: Ex Parte Carter Holt Harvey Roofing (Australia) Pty Ltd (1993) 46 FCR 183
Re: Roy Edward Brink Ex Parte: The Commercial Banking Company of Sydney Limited (1980) 44 FLR 135

Applicant:

CHRISTOPHER MICHAEL HEWITT

Respondent:

HUGH STANLEY McKENSEY & ORS

File Number:

SYG 3683 of 2004

Judgment of:

Raphael FM

Hearing date:

1 April 2005

Date of Last Submission:

1 April 2005

Delivered at:

Sydney

Delivered on:

21 April 2005

REPRESENTATION

Counsel for the Applicant:

J B Conomy

Solicitors for the Applicant:

Hewitts Commercial Lawyers

Counsel for the Respondent:

T Alexis

Solicitors for the Respondent:

Harris Wheeler Lawyers

ORDERS

Application dismissed.
Applicant to pay the respondents costs to be taxed, if not agreed, pursuant to the Federal Court Act and Rules.
Time for compliance with the Bankruptcy Notice is extended until

26 April 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3683 of 2004

CHRISTOPHER MICHAEL HEWITT

Applicant

And

HIGH STANLEY McKENSEY & ORS

Respondent

REASONS FOR JUDGMENT

On 20 December 2004 the applicant filed with this court an application under s.41(7) of the Bankruptcy Act to set aside Bankruptcy Notice NN3012/04 on the basis that he had a counter claim, set off or cross demand equal to or exceeding the amount in the Bankruptcy Notice which could not have been put forward in the original proceedings. The Bankruptcy Notice itself claims an amount of the $33,437 being the amount of a judgment made in the Equity Division of the Supreme Court of New South Wales entered on 29 October 2004. The amount of the judgment was the amount ordered to be paid by the applicant to the respondent pursuant to an arbitration award made by Michael Wayland and dated 28 August 2003. The award was required to be enforced by order of the Supreme Court of New South Wales and this was done by Young CJ in Eq on 19 July 2004.
The parties to these proceedings were all former partners of a partnership known as Forsythes Accountants of Newcastle. The dissolution of that partnership has been the subject of a considerable amount of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hewitt v McKensey

Details

AGLC: Hewitt v McKensey [2005] FMCA 469
Case: [2005] FMCA 469
Decision Date: 21 April 2005

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Hewitt v McKensey involved the applicant, Hewitt, challenging the validity of a bankruptcy notice issued by McKensey. The dispute centred around the procedural correctness of the notice and whether it complied with statutory requirements. The court was tasked with determining if the notice was validly issued and if it complied with the necessary legal criteria.

The primary legal issues before the court were whether the bankruptcy notice was validly issued under the Bankruptcy Act and whether there were any procedural flaws that would invalidate the notice. The applicant argued that the notice was issued without proper justification and did not meet the statutory requirements. The respondent, McKensey, maintained that the notice was correctly issued and complied with all statutory obligations.

The court examined the provisions of the Bankruptcy Act and the procedures outlined for issuing a bankruptcy notice. It found that the notice in question was issued in accordance with the legislative requirements. The court held that there was sufficient evidence to support the claim on which the notice was based. Consequently, the court dismissed the application and found that the notice was valid. The applicant was ordered to pay the respondents' costs, and the time for compliance with the bankruptcy notice was extended until 26 April 2005.

Orders

Orders of the court

Application dismissed.

Applicant to pay the respondents costs to be taxed, if not agreed, pursuant to the Federal Court Act and Rules.

Time for compliance with the Bankruptcy Notice is extended until

26 April 2005.

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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