Larter v National Australia Bank
[2007] FMCA 426
•20 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LARTER v NATIONAL AUSTRALIA BANK | [2007] FMCA 426 |
| BANKRUPTCY – Application to extend time for compliance with bankruptcy notice – where there is an appeal against dismissal of a cross claim – where there are no grounds of appeal filed – where judgment indicates that there is no evidence of damage. |
| Federal Magistrates Court (Bankruptcy) Rules 2006 |
| Glew v Harrowell (2003) 198 ALR 331 Porter v OAMPS [2004] FMCA 272 Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 Shephard v Chiquita Brands (South Pacific) Ltd [2001] FCA 1394 Liew v JNS Technologies [1999] FCA 1428 Lodhia v Trust Company of Australia [2005] FMCA 150 |
| Applicant: | BRUCE IAN LARTER |
| Respondent: | NATIONAL AUSTRALIA BANK LIMITED |
| File number: | SYG1658 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 20 March 2007 |
| Date of last submission: | 20 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr J Kells |
| Counsel for the Respondent: | Mr J White |
| Solicitors for the Respondent: | Dibbs Abbott Stillman |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs to be taxed if not agreed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1658 of 2006
| BRUCE IAN LARTER |
Applicant
And
| NATIONAL AUSTRALIA BANK LIMITED |
Respondent
REASONS FOR JUDGMENT
The proceeding in respect of which these reasons are given is associated with proceedings brought against Wanda Larter on which I have today also given reasons for judgment. This application is an application by the debtor for an extension of time for compliance with a bankruptcy notice pending the hearing of an appeal against a decision of Rolfe J which dismissed a cross-claim against the judgment creditor. I should recall that the debt upon which the bankruptcy notice was founded was a debt which was the subject of proceedings heard before Robison J on 10 April 2006 and not appealed.
In my reasons for decision in Mrs Larter’s case I referred to a number of authorities concerning the ability of the court to suspend bankruptcy processes whilst proceedings, in relation to the primary debt, were under way. I pointed out that this was not a proceeding under a primary debt. I also made reference to the requirements of being able to show an arguable case in relation to the appeal and the views expressed by Lindgren J in Glew v Harrowell (2003) 198 ALR 331.
I have made reference to the case of Porter v OAMPS [2004] FMCA 272 where I considered these principles in the context of a debtors cross-claim which had been dismissed and made reference to a number of cases including Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264, Shephard v Chiquita Brands (South Pacific) Ltd [2001] FCA 1394, and Liew v JNS Technologies [1999] FCA 1428, all of which cases drew a distinction between a bankruptcy notice and a petition.
I also dealt with this type of matter in Lodhia v Trust Company of Australia [2005] FMCA 150 at [6] and in those cases I was not inclined to further extend time for compliance with a bankruptcy notice, making the point that the existence of an act of bankruptcy, while serious, is not as serious as a sequestration order and allows an applicant to make further submissions in relation to the matter when any application for a sequestration order comes to be heard. I would take that same view in this case.
The appeal is in a very early stage. As I said in Mrs Larter’s decision I have really very little knowledge about it. There is no transcript yet and certainly no grounds of appeal. What I also noted was that there was no substantive assertion that Rolfe J’s views that there was no evidence before the court that the assignor had suffered any loss or damage was a question in the appeal. It is therefore, in my view, in the interest of justice that no further extension of the bankruptcy notice should be allowed.
This will at least fix the date of the act of bankruptcy even if at a later time based upon some information that I do not currently have, the court decides that the application for a sequestration order should be adjourned pending the hearing of the appeal. I dismiss the application and I order that the applicant pay the respondent’s costs to be taxed if not agreed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
6
1