FEDERAL MAGISTRATES COURT OF AUSTRALIA
| IVORY v TELSTRA CORPORATION LIMITED & ORS | [2010] FMCA 123 |
| BANKRUPTCY – Bankruptcy Notice – application to set aside bankruptcy notice – whether notice properly served – whether debtor entitled to indemnity from third party a relevant consideration. |
| Bankruptcy Act 1966, s.40 Bankruptcy Regulations 1996, r.16.01 Judiciary Act 1903, s.65 |
| Australian and New Zealand Banking Group Limited v Menso [2006] FMCA 1522 Gargan v Commonwealth of Australia [2005] NSWSC 1178 |
| Applicant: | KENNETH CLYDE IVORY |
| Respondents: | TELSTRA CORPORATION LIMITED ACN 051 775 556 AND EACH OF ITS BOARD OF DIRECTORS AND ITS COMPANY SECRETARY AND ITS CHIEF FINANCIAL OFFICER |
| File Number: | BRG 836 of 2008 |
| Judgment of: | Wilson FM |
| Hearing dates: | 27 March, 3 April 2009 |
| Date of Last Submission: | 3 April 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 26 February 2010 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Mr Sullivan S.C. |
| Solicitors for the Respondent: | Mallesons Stephen Jaques |
ORDERS
The separate questions ordered to be decided by the Court on 6 February 2009 and 20 March 2009 be answered as follows:
(i)The Bankruptcy Notice should not be set aside on the grounds that:
(a)Service of the notice was not properly effected, because the notice was properly served;
(b)The judgment debtor is entitled to be indemnified by the Commonwealth of Australia against the judgment debt, because that is not a ground upon which to set aside the Bankruptcy Notice, and in any event the applicant is not so entitled;
(c)The judgment sought to be relied upon by the respondent Telstra Corporation Limited is stale and cannot be used to support the Bankruptcy Notice, because the judgment relied upon was made on 3 September 2008;
(d)The Bankruptcy Notice is invalid because it only has attached to it the order of the Deputy Registrar made on 3 September 2008, because such order is sufficient for the purposes of the Bankruptcy Act.
The names of all respondents other than Telstra Corporation Limited be removed from these proceedings.
The applicant pay the costs of the respondent Telstra Corporation Limited of and incidental to the hearing of the separate questions.
The matter otherwise be listed for directions before Federal Magistrate Jarrett on 18 March 2010 at 9.30am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 836 of 2008
| KENNETH CLYDE IVORY |
Applicant
And
| TELSTRA CORPORATION LIMITED ACN 051 775 556 AND EACH OF ITS BOARD OF DIRECTORS AND ITS COMPANY SECRETARY AND ITS CHIEF FINANCIAL OFFICER |
Respondents
REASONS FOR JUDGMENT
The applicant seeks to set aside Bankruptcy Notice QN 1443/2008. The respondent Telstra Corporation Ltd had previously had issued Bankruptcy Notice QN 1263/2008. On 5 December 2008, at Telstra’s request, Logan J set aside Bankruptcy Notice QN 1263/2008. His Honour ordered that the proceedings continue in respect of Bankruptcy Notice QN 1443/2008. The matter was transferred to this Court.
On 6 February 2009 this Court ordered:
(1)That the court will deal with the following as a separate question:
Whether…
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- Case
- [2010] FMCA 123
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the Bankruptcy Notice was properly served, whether the applicant could be indemnified by the Commonwealth against the judgment debt, whether the judgment relied upon by Telstra was too old to support the Bankruptcy Notice, and whether the Bankruptcy Notice was invalid due to the attachment of an order rather than the judgment itself. The court also considered whether other respondents should be removed from the proceedings and the question of costs.
The court ruled that the Bankruptcy Notice was validly served and that the other grounds for setting it aside were not substantiated. The court held that service of the notice was proper and that the applicant's entitlement to indemnification by the Commonwealth was not a basis to set aside the notice. The court found that the judgment relied upon was recent enough to support the notice and that the attachment of the Deputy Registrar's order was sufficient. Consequently, the court ordered that the names of all respondents other than Telstra Corporation Limited be removed from the proceedings. Additionally, the court ordered the applicant to pay the costs of Telstra Corporation Limited and directed the matter to be listed for further directions.
Orders
Orders of the court
1.
The separate questions ordered to be decided by the Court on 6 February 2009 and 20 March 2009 be answered as follows:
(i) The Bankruptcy Notice should not be set aside on the grounds that:
(a) Service of the notice was not properly effected, because the notice was properly served;
(b) The judgment debtor is entitled to be indemnified by the Commonwealth of Australia against the judgment debt, because that is not a ground upon which to set aside the Bankruptcy Notice, and in any event the applicant is not so entitled;
(c) The judgment sought to be relied upon by the respondent Telstra Corporation Limited is stale and cannot be used to support the Bankruptcy Notice, because the judgment relied upon was made on 3 September 2008;
(d) The Bankruptcy Notice is invalid because it only has attached to it the order of the Deputy Registrar made on 3 September 2008, because such order is sufficient for the purposes of the Bankruptcy Act.
2.
The names of all respondents other than Telstra Corporation Limited be removed from these proceedings.
3.
The applicant pay the costs of the respondent Telstra Corporation Limited of and incidental to the hearing of the separate questions.
4.
The matter otherwise be listed for directions before Federal Magistrate Jarrett on 18 March 2010 at 9.30am.
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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