FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KALFUS v CASSIS | [2005] FMCA 143 |
| BANKRUPTCY – Application to set aside bankruptcy notice and for an extension of time for compliance – extension of time application based upon special leave application to the High Court – whether a special leave application is a proceeding to set aside the judgment or order supporting the bankruptcy notice considered – bankruptcy notice claiming interest within 21 days of Supreme Court judgment – whether the bankruptcy notice is invalid considered. |
| Bankruptcy Act 1966 (Cth), ss.30, 41 Supreme Court Act 1970 (NSW), ss.92, 95 |
| Bryant v Commonwealth Bank of Australia (9 November 1994) Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 Carson v John Fairfax & Sons Ltd (1991) 173 CLR 217 Collins (alias Hass) v the Queen (1975) 133 CLR 120 Conway v Jackson (2001) 107 FCR 201 Elliott v Water Wheel Holdings Ltd & Water Wheel Mills Pty Ltd [2004] FMCA 37 Forrest v Kelly (1991) 105 ALR 397 Harrison v Schipp [2001] FMCA 70 Herchenroder & Anor v Smith [2003] FMCA 96 Jenkins v NAB [1999] FCA 1758 Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 O’Loughlin v Glenmont Investments Pty Ltd (2002) 191 ALR 336 Rahme v Commonwealth Bank of Australia (1993) 117 ALR 618 Re Baker; ex parte Baker v Staples (4 September 1995) Re Briggs; ex parte Briggs v DCT (WA) (1986) 75 ALR 554 Re Coldham; ex parte BLF (1986) 64 ALR 215 Re Simanovich’s Application (2001) 180 ALR 448 Re Sterling; ex parte Esanda Pty Ltd (1980) 30 ALR 77 Walsh v Deputy Commissioner of Taxation (1984) 53 ALR 606 |
| Applicant: | MARCEL ISADOR KALFUS |
| Respondent: | SAMI ALFRED CASSIS |
| File Number: | SYG3330 of 2004 |
| Judgment of: | Driver FM |
| Hearing date: | 18 February 2005 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr G George |
| Solicitors for the Applicant: | Pateman Solicitors |
| Counsel for the Respondent: | Mr P Roberts SC |
| Solicitors for the Respondent: | Levitt Robinson |
ORDERS
Bankruptcy notice NN2576 of 2004 is set aside.
The respondent shall pay the applicant’s costs of these proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3330 of 2004
| MARCEL ISADOR KALFUS |
Applicant
And
| SAMI ALFRED CASSIS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
By application filed on 12 November 2004, Marcel Kalfus seeks an order setting aside bankruptcy notice number NN2576/2004, which was issued on 1 October 2004 and served on Mr Kalfus on 21 October 2004. He also seeks costs. In addition, Mr Kalfus seeks an order pursuant to s.41(6A) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) that the time for compliance with the bankruptcy notice be extended to the date being 28 days after delivery of judgment by the High Court of Australia in respect to an application for special leave to appeal filed on 18 October 2004. Mr Kalfus seeks the same relief in the alternative, pursuant to s.30(1)(a) of the Bankruptcy Act. The application is opposed…
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- AGLC
- Kalfus v Cassis [2005] FMCA 143
- Case
- [2005] FMCA 143
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to address was whether the bankruptcy notice was validly served in accordance with the Bankruptcy Act 1966. The applicant argued that the notice was not properly served as it did not meet the requirements of section 18 of the Act. Specifically, he contended that the notice did not clearly identify the amount of debt, the time within which to pay the debt, and the consequences of non-payment. The court also considered whether the respondent had acted unreasonably in issuing the notice.
The court found in favour of the applicant, setting aside the bankruptcy notice. It held that the notice was not validly served as it failed to comply with the statutory requirements. The court found that the notice did not clearly state the amount of debt, which was a critical deficiency. Additionally, the court noted that the notice did not adequately inform the applicant of the consequences of non-payment, thus further invalidating the notice. Consequently, the court ordered that the bankruptcy notice NN2576 of 2004 be set aside and directed that the respondent pay the applicant’s costs of the proceedings.
Orders
Orders of the court
1.
Bankruptcy notice NN2576 of 2004 is set aside.
2.
The respondent shall pay the applicant’s costs of these proceedings.
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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