Klewer v Walton

[2004] FCAFC 284

FEDERAL COURT OF AUSTRALIA

Klewer v Walton [2004] FCAFC 284

BANKRUPTCY – Bankruptcy notice – validity – order for the payment of costs on the dismissal of an information – whether right of immediate execution of the order – whether execution impliedly stayed

Bankruptcy Act 1966 (Cth) ss 40(1)(g) and 41(3)(b)

Fines Act 1996 (NSW) s 109, 110
Local Courts (Civil Claims) Act 1970 (NSW) ss 58 and 70

Local Courts (Civil Claims) Rules 1988 (NSW) Pt 39 r 3

Abigroup Limited v Abignano (1992) 39 FCR 74 - cited
Reasonable Endeavours Pty Ltd v Dennahy (2001) 107 FCR 144 - cited
In the marriage of Cawood (2000) 27 Fam LR 403 - cited
Franks v Warringah Council (2003) 131 FCR 287 - distinguished
Re Pantelich; Ex parte Cekic (1989) 25 FCR 603 – distinguished
Re Williams; Ex parte Alberton Electrical Service Pty Ltd (1982) 43 ALR 552 - distinguished

LUCY KLEWER v IAN WALTON

N696 of 2004

RYAN, MERKEL AND CONTI JJ
5 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N696 OF 2004

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	LUCY KLEWER APPELLANT
AND:	IAN WALTON RESPONDENT
JUDGES:	RYAN, MERKEL AND CONTI
DATE OF ORDER:	5 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs, to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N696 OF 2004

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	LUCY KLEWER APPELLANT
AND:	IAN WALTON RESPONDENT
JUDGES:	RYAN, MERKEL AND CONTI
DATE:	5 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT

1. On 10 December 2001 the Local Court Coffs Harbour dismissed an information by the appellant against the respondent for common assault and ordered the appellant to pay the respondent’s professional costs of $10,504 within 14 days, that is to say, on or before 24 December 2001 (“the costs order”).  The amount ordered to be paid was not paid.

2. A Bankruptcy Notice, which was issued by the Official Receiver on 12 December 2003, was served on the appellant on 11 February 2004.  The Bankruptcy Notice specifies the total debt owing as $10,504.  Annexed to the Bankruptcy Notice was a Certificate of Conviction under “the Evidence Act, 1995 Section 178” issued by the Local Court Coffs Harbour.  It gives particulars of the dismissal of the information and records the order for Ms Klewer to pay the respondent’s professional costs in the amount of $10,504 on or before 24 December 2001. The Certificate of Conviction, which is dated 21 January 2002, contains a certification under the seal of the Local Court Coffs Harbour by the Clerk of the Court to the effect that the particulars set out in the Certificate are a true record of the Court.

3. The…