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Kalfus v Cassis

Kalfus v Cassis

Case [2005] FMCA 143 8 March 2005

Bankruptcy Notice

Costs

Insolvency Law

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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…

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 Kalfus v Cassis

Details

AGLC: Kalfus v Cassis [2005] FMCA 143
Case: [2005] FMCA 143
Decision Date: 8 March 2005

CaseChat Overview and Summary

In the matter of Kalfus v Cassis, the applicant sought to set aside a bankruptcy notice served on him by the respondent, who was his creditor. The Federal Circuit and Family Court of Australia heard the case. The crux of the dispute lay in whether the bankruptcy notice was validly served and whether the grounds for setting aside the notice were substantiated.

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

Bankruptcy notice NN2576 of 2004 is set aside.

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

Full text does not contain this section.

Citations

AGLC Citation

Kalfus v Cassis [2005] FMCA 143

Most Recent Citation

Richardson v Leonard Cohen & Co [2007] FMCA 78

Cases citing this decision · 3 of 3 shown

Lavin v Toppi
[2014] FCCA 1228 Para 4

…) in Kalfus v Cassis .[8] [5] (2001) 191 ALR 336 at page 337 ([4]) [6] (2001) 182 ALR 185 [7] (2001) 182 ALR 185 at page 191 ([20]) [8] [2005] FMCA 143…
ABC v Smith
[2013] FCCA 177 Para 4

…issues to be tried and these could possibly form the basis of a substantiated discrimination claim[6] [6] Ilian v Australian Broadcasting Corporation [2005] FMCA 143…
Richardson v Leonard Cohen & Co
[2007] FMCA 78 Para 2

…FCA 230 at paras 19-20 and 29 per Moore, Mathews and Mansfield JJ (“ Conway ”). [41] Kalfus v Cassis (2005) 3 ABC (NS) 649 at 656 per Driver FM; [2005] FMCA 143 at para 26 per Driver FM “( Kalfus ”) [42] Harrison v Schipp (2001) 189 ALR 144 at 155 per Driver FM; [2001] FMCA 70 at para 27 per Driver FM (“ Schipp ”…

View all 3 citing cases →

Cases cited in this decision · 15 of 15 shown

Elliott v Water Wheel Holdings Ltd
[2004] FMCA 37 Para 1

…need to repeat them. I have regard, in particular, to the observation by McInnis FM in Elliott v Water Wheel Holdings Ltd & Water Wheel Mills Pty Ltd [2004] FMCA 37 at [17]-[20]. The considerations of particular relevance in this case have been identified by counsel in their submissions.…
Herchenroder & Anor v Smith
[2003] FMCA 96 Para 3

…ication was made by the applicant as a “last gasp” after several earlier unsuccessful appeals[8]. [8] see for example Herchenroder & Anor v Smith [2003] FMCA 96 at [13]…
Harrison v Schipp
[2001] FMCA 70 Para 1

…source of power available to the Court to extend time for compliance with the bankruptcy notice is s.41(6A) of the Bankruptcy Act: Harrison v Schipp [2001] FMCA 70 at [26]. That section requires, as a pre-condition to the exercise of power, that the applicant for an extension of time either commence proceedings…
O'Loughlin v Glenmont Investments Pty Ltd
[2001] FCA 925 Para 6

…on to a special leave application have assumed power without deciding if there is power. The exception is O’Loughlin v Glenmont Investments Pty Ltd (2002) 191 ALR 336 per Mansfield J at [4]. Mr Roberts submits that that decision is wrong because a special leave application is different in character from an appeal and…
Re Sinanovic's Application
[2001] HCA 40 Para 5

…If there were any doubt whether a special leave application is a proceeding that doubt was removed by the High Court in Re Simanovich’s Application (2001) 180 ALR 448. In that case, at paragraph 7, Kirby J said: A decision on a special leave application is not res judicata as between the parties, equivalent to a judg…
Conway v Jackson
[2001] FCA 230 Para 6

…aside the judgment and orders of the Court of Appeal, for the purposes of s.41(6A) of the Bankruptcy Act. Mr Roberts accepts that in Conway v Jackson (2001) 107 FCR 201 the Full Federal Court established conclusively that an appeal was a proceeding to set aside a judgment or order supporting a bankruptcy notice but s…
Jenkins v National Australia Bank Ltd
[1999] FCA 1758 Para 2

…onclusively decided previously. The authority cited by the learned authors of Butterworth’s Bankruptcy Law and Practice Service[5] is Jenkins v NAB [1999] FCA 1758. However, the Court in that case did not make a clear finding. Ryan J made an assumption at paragraph 3. Several other decisions, both of the Federal C…
Byron v Southern Star Group Pty Ltd
[1997] HCATrans 193

…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 [2…
Rahme v Commonwealth Bank of Australia
[1993] HCA 62 Para 6

…s 122-3; Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 at page 683; Rahme v Commonwealth Bank of Australia (1993) 117 ALR 618 at page 620…
Carson v John Fairfax & Sons Ltd
[1993] HCA 31 Para 5

…ll assume that this is a valid distinction, compatible with the Constitution. His Honour’s analysis is consistent with that of the whole Court in Carson v John Fairfax & Sons Ltd (1991) 173 CLR at 217-218.…
Forrest v Kelly
[1992] FCA 65 Para 5

…that a special leave application is not a proceeding . A proceeding is a word of broad meaning not limited to a judicial proceeding: Forrest v Kelly (1991) 105 ALR 397 at 408. It includes an application for an extension of time to institute an appeal: Re Coldham; ex parte BLF (1986) 64 ALR 215 at 219. If there were…
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd
[1986] HCA 84 Para 6

…acter from an appeal and cannot constitute the institution of an appeal[1]. [1] Collins (alias Hass) v the Queen (1975) 133 CLR 120 at pages 122-3; Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 at page 683; Rahme v Commonwealth Bank of Australia (1993) 117 ALR 618 at page 620…
Walsh v Deputy Commissioner of Taxation
[1984] HCA 33 Para 5

…. A bankruptcy notice speaks as at the date of its issue and its validity must be determined as at that date: Walsh v Deputy Commissioner of Taxation (1984) 53 ALR 606. The bankruptcy notice in this case was issued on 1 October 2004, a mere 11 days after the judgment of the Court of Appeal. This was well within the…
Re Sterling; Ex parte Esanda Ltd
[1980] FCA 61 Para 1

…ed, service of the notice or abuse of process: Re Briggs; ex parte Briggs v DCT (WA) (1986) 75 ALR 554 at 556; Re Sterling; ex parte Esanda Pty Ltd (1980) 30 ALR 77. In this case, the bankruptcy notice is challenged on the basis that it is an abuse of process and that there was no interest debt due and payable at t…
Collins v The Queen
[1975] HCA 60 Para 6

…ve application is different in character from an appeal and cannot constitute the institution of an appeal[1]. [1] Collins (alias Hass) v the Queen (1975) 133 CLR 120 at pages 122-3; Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 at page 683; Rahme v Commonwealth Bank of Austra…

Legislation cited in this decision · 3

Bankruptcy Act 1966 (Cth)
30, 41 3 mentions (from Para 1)
Supreme Court Act 1970 (NSW)
92, 95 3 mentions (from Para 2)
Legal Profession Act 1987 (NSW)
1 mention (from Para 3)