Lal v Surti Pty Limited

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAL v SURTI PTY LIMITED [2009] FMCA 1229

BANKRUPTCY – Application to set aside bankruptcy notice – where applicant claims his solicitors responsible for not raising the cross claim in Local Court proceedings.

Bankruptcy Act 1966 (Cth) s.40(1)(g)
Federal Magistrates Court (Bankruptcy) Rules 2006

Ebert v The Union Trustee Company of AustraliaLimited (1961) 105 CLR 327
Bhagat v Global Custodians Limited [2002] FCA 223
Walton v National Mutual Life Association of Australasia Limited (1994) 49 FCR 406

Applicant: HASMUKH LAL

Respondent: SURTI PTY LIMITED

File Number: SYG 2256 of 2009

Judgment of: Raphael FM

Hearing date: 1 December 2009

Date of Last Submission: 1 December 2009

Delivered at: Sydney

Delivered on: 1 December 2009

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Mr Reed

Solicitors for the Respondent: Lodhia Lawyers

ORDERS

1. Application dismissed.

2. Applicant debtor to pay the Respondent’s costs to be taxed, if not agreed, pursuant to the Federal Magistrates Court (Bankruptcy) Rules 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2256 of 2009

HASKMUKH LAL

Applicant

And

SURTI PTY LIMITED

Respondent

REASONS FOR JUDGMENT

1. This is an application for the review of an order of Registrar Hedge dismissing an application to set aside a bankruptcy notice which had been brought on the grounds that the applicant had a cross-claim, cost demand or set-off equal to, or in excess of, the amount claimed in the bankruptcy notice which he could not have raised in the original proceedings s.40(1)(g) Bankruptcy Act 1966 (Cth) (the “Act”).

2. The applicant, Mr Lal, filed an affidavit on 1 December 2009 and the first part of this morning’s hearing was taken up with issues surrounding the proceedings before Registrar Hedge, including applications for adjournment, arguments relating to medical certificates provided by Mr Lal and other matters.  However, as both parties agreed that they were happy for the substantive review application to be heard this is what has occurred.  The substantive review application in effect being a rehearing or a first hearing, because Mr Lal did not appear previously, of his application to set aside the bankruptcy notice.

3. The history of the disputes between the parties has been deposed to in the affidavit of Mr Lal.  The respondent creditor is in agreement with the fact that there were certain proceedings before Magistrate Curran in the Local Court of New South Wales brought by the creditor against the debtor concerning a cheque which the creditor claimed that the debtor converted.  Mr Lal tells this Court that he had an agreement with the respondent pursuant to which the respondent was to sell him the respondent’s post office franchise.  Mr Lal says that in pursuance of that agreement he did a number of things, the most important being that he arranged for the sale of his accounting business and he entered into a non-compete clause with the purchaser of that business.  He also expended moneys on a training course run by Australia Post.  Mr Lal says that the…