Lazar v Seccombe

[2005] FCA 1652

FEDERAL COURT OF AUSTRALIA

Lazar v Seccombe [2005] FCA 1652

IAN DAVID LAZAR V JOCYLYN SECCOMBE AND LACHLAN SECCOMBE

N 1934 of 2005

JACOBSON J
16 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1934 OF 2005

BETWEEN:

IAN LAZAR
APPLICANT

AND:

JOCYLYN SECCOMBE
FIRST RESPONDENT

LACHLAN SECCOMBE
SECOND RESPONDENT

JUDGE:

JACOBSON J

DATE OF ORDER:

16 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.In the event of a sequestration order being made on the application of the respondent to the present proceedings as petitioner to the bankruptcy petition (or by a substituted petitioner and creditor), then the applicant is to pay the respondent’s costs of this application with the respondent being accorded the priority ascribed by r 40.

3.In the event that no sequestration order is made by 16 February 2006, the applicant is to pay the respondents costs of this application.

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	N 1934 OF 2005

BETWEEN:

IAN DAVID LAZAR
APPLICANT

AND:

JOCYLYN SECCOMBE
FIRST RESPONDENT

LACHLAN SECCOMBE
SECOND RESPONDENT

JUDGE:	JACOBSON J
DATE:	16 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to set aside a bankruptcy notice issued on 19 August 2005.  The bankruptcy notice was issued at the request of the respondents upon the basis of a consent judgment for $200,000 obtained in the District Court at Coffs Harbour on 5 May 2005.

2. The application stated three grounds for the exercise of the jurisdiction to set aside the bankruptcy notice.  The first was that proceedings to set aside or stay the original judgment had been instituted; this ground was not pursued. 

3. The second ground was that the bankruptcy notice was not duly served as required by Regulation 16.01 of the Bankruptcy Regulations 1996 (Cth). This ground was pursued and I will refer below to the evidence on this question.

4. The third ground was that the applicant had a counter‑claim, set-off, or cross-demand as referred to in section 40(1)(g) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”); this ground was not pursued.

5. The fourth ground, which was not referred to in the application as filed, was that the issue of the bankruptcy notice constituted an abuse of process because the consent orders pursuant to which the judgment was obtained provided for the respondents to execute a deed of release and to issue a tax invoice, neither of which events had taken place at the time when the bankruptcy notice was issued. That question seems to me to turn upon the proper construction of the consent orders which I will refer to later. I should pause to add that it was conceded by counsel for the applicant that the claim to enforce the terms of the consent orders was not a counter-claim, set-off, or cross-demand which met the requirements of…