Lambros v First Capital Securities Limited

[2007] FMCA 1553

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LAMBROS v FIRST CAPITAL SECURITIES LTD [2007] FMCA 1553

BANKRUPTCY – Application to set aside bankruptcy notice – validity of bankruptcy notice – requirement to particularise amounts credited against judgment debt.

BANKRUPTCY – Application to set aside bankruptcy notice – counterclaim, set-off or cross demand – entitlement of applicant guarantor to raise claims against creditor.

Bankruptcy Act1966, ss.30, 40, 41
Federal Magistrates Court (Bankruptcy) Rules 2006, Rule 3.02

In re Miller; ex parte Furniture and Fine Arts Depositories Ltd [1912] 3 KB 1
Re Manion; ex parte Deputy Commissioner of Taxation (1978) 37 FLR 78
Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71
St George Wholesale Finance Pty Ltd v Spalla (2000) 181 ALR 682
Re Kostezky; ex parte Milder Elfman Szmerling Krycer Pty (1996) 67 FCR 101
Re Walsh (1982) 65 FLR 88
Capital Finance Australia Ltd v Airstar Aviation Pty Ltd [2004] 1 Qd R 122
GE Capital Australia v Davis [2002] NSWSC 1146

Applicant: CONSTANTINE VICTOR LAMBROS

Respondent: FIRST CAPITAL SECURITIES LIMITED ACN 109 846 853

File number: BRG 595 of 2007

Judgment of: Wilson FM

Hearing date: 27 July 2007

Date of last submission: 8 August 2007

Delivered at: Brisbane

Delivered on: 14 September 2007

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: Bennett & Philp

Counsel for the Respondent: Ms Conway

Solicitors for the Respondent: Dibbs Abbott Stillman

ORDERS

1. That the application filed 16 July 2007 be dismissed.

2. The applicant pay the respondent’s costs of and incidental to the application to be taxed, if not agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 595 of 2007

CONSTANTINE VICTOR LAMBROS

Applicant

And

FIRST CAPITAL SECURITIES LIMITED ACN 109 846 853

Respondent

REASONS FOR JUDGMENT

1. On 25 June 2007, the applicant was served with a bankruptcy notice that required him to pay, or make an arrangement with the respondent for the payment of, the sum of $573,113.11.

2. The schedule to the bankruptcy notice referred to a judgment obtained by the respondent against the applicant of $2,180,449.90.  It allowed a credit for “payments made and/or credits allowed since date of judgments or orders” in the amount of $1,607,336.79.  The balance is the amount claimed in the bankruptcy notice.

3. The applicant seeks to set aside the bankruptcy notice on two grounds:

   a)The bankruptcy notice is invalid because it fails to show how the amount claimed is calculated;

   b)The applicant has a counterclaim, set off or cross demand equal to or exceeding the amount claimed in the bankruptcy notice.

4. The claim by the respondent against the applicant is pursuant to a deed of guarantee and indemnity, to which I will make more detailed reference in due course.  The respondent commenced proceedings in the Supreme Court of Queensland against Conviction Developments Pty Ltd, the principal borrower; Anela Pty Ltd, a related company that provided security for the loan advanced by the respondent to Conviction; the present applicant and another director of Conviction, who is presumably also a…