Lawman v Queensland Building Services Authority

FEDERAL COURT OF AUSTRALIA

Lawman v Queensland Building Services Authority [1999] FCA 1781

BANKRUPTCY - creditor’s petition - application for annulment of sequestration order - debtor made bankrupt despite offer exceeding the judgment debt upon which bankruptcy notice founded - Court not informed of offer - whether sequestration order should be set aside on ground that proceedings an abuse of process - whether bankrupt solvent - test for solvency

Bankruptcy Act 1966 (Cth) ss 52 and 153B
Queensland Building Services Authority Act 1991 (Qld)

International Alpaca Management Pty Ltd v Ensor [1999] FCA 72 cited

McPherson, The Law of Company Liquidation (4th ed)

RAYMOND MICHAEL LAWMAN v QUEENSLAND BUILDING SERVICES AUTHORITY AND GRAHAM ROSS BENDEICH, TRUSTEE
Q 213 OF 1999

HEEREY, DRUMMOND AND DOWSETT JJ
17 DECEMBER 1999
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 213 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

RAYMOND MICHAEL LAWMAN
Appellant

AND:

QUEENSLAND BUILDING SERVICES AUTHORITY
First Respondent

GRAHAM ROSS BENDEICH, TRUSTEE
Second Respondent

JUDGES:	HEEREY, DRUMMOND AND DOWSETT JJ
DATE OF ORDER:	17 DECEMBER 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The costs of both respondents be paid out of the bankrupt’s estate with priority according to s 109(1)(a) of the Bankruptcy Act 1966 (Cth).

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 213 OF 1999

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

RAYMOND MICHAEL LAWMAN
Appellant

AND:

QUEENSLAND BUILDING SERVICES AUTHORITY
First Respondent

GRAHAM ROSS BENDEICH, TRUSTEE
Second Respondent

JUDGES:	HEEREY, DRUMMOND AND DOWSETT JJ
DATE:	17 DECEMBER 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

1. On 19 February 1999 a sequestration order was made against the estate of the appellant. He later applied for the annulment of his bankruptcy under s 153B of the Bankruptcy Act 1966 (Cth). On 28 August 1999 Kiefel J dismissed that application.

2. The act of bankruptcy relied on was failure to comply with a bankruptcy notice issued on 28 May 1997.  The judgment founding the notice was a determination of the Queensland Building Tribunal subsequently lodged with the District Court of Queensland pursuant to the Queensland Building Services Authority Act 1991 (Qld). The amount claimed in the notice was $11,043.49.

3. Delays occurred in serving the bankruptcy notice.  On 21 August 1998 an order was made for substituted service by posting a copy to the appellant care of his then solicitors Klooger Phillips & Co and by publishing an advertisement in the Sunshine Coast Daily.

4. On 8 October 1998 the respondent filed a bankruptcy petition.  The debt alleged in the petition was a lesser amount, viz, $10,740.67.  It appears that this was the amount of the judgment and the difference ($302.82) was interest on that amount from 14 February to 28 May 1997.  On 2 December 1998 the petition was adjourned until 11…