FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LFDB v SM | [2011] FMCA 892 |
| BANKRUPTCY – Application to set-aside Bankruptcy Notices brought on the basis that it is an abuse of process - deemed extension of time in which to comply with Notice – initial extension of time granted pursuant to s.41(6A) – whereas Application to set-aside claimed to be brought pursuant to s.41(7) although r.3.02 not complied with – Application to dispense with the requirements of r.3.02 of the Federal Magistrates Court (Bankruptcy) Rules 2006 – application dismissed. |
| Bankruptcy Act 1966 (Cth), ss.33(1)(c), 41(6A) , 41(7) Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) rr.106, 3.02 Legal Profession Act 2004 Property Relationship Act 1976 (New Zealand) |
| Alcantara v Buildpower Pty Ltd (2010) 199 IR 73 Australian Securities and Investment Commission v Forge [2003] FCAFC 274 ASB Bank Ltd v SM HC Auckland CIV-2011-404-004245 Brunninghausen v Glavanics [1998] FCA 230 Guss v Johnstone [2000] HCA 26 James v Abrahams (1981) 51 FLR 16 Kennon v Spry (2008) 238 CLR 366 Maxwell-Smith v S & E Hall Pty Ltd [2006] FCA 825 Melaleuca of Australia & New Zealand Pty Ltd v Duck [2005] FCA 1481 Phontos v Carlamax Properties Pty Ltd [2011] FMCA 205 Re Dalco;Ex Parte Dalco v Deputy Commissioner of Taxation (Cth) (1986) 87 FLR 334 Re Sarina; Ex parte Wollondilly Shire Council [1980] 30 ALR 266 Rose v Merriton Apartments Pty Ltd [2011] FMCA 721 Shephard v Chiquita Brands (South Pacific) Ltd [2004] FCAFC 76 Thorpe v Bristile Ltd (1997) 80 FCR 330 Webb v Hunter (1995) 59 FCR 24 |
| Applicant: | LFDB |
| Respondent: | SM |
| File Number: | SYG 1575 of 2011 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 4 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 18 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Skinner |
| Solicitors for the Applicant: | Newnham Solicitors |
| Counsel for the Respondent: | Mr S. Golledge |
| Solicitors for the Respondent: | Leonard Legal |
ORDERS
The Application to dispense with compliance with r.3.02 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) is dismissed.
The Application filed on 25 July 2011 seeking Bankruptcy Notice BN 4632 of 27 June 2011 to be set-aside is dismissed.
The Applicant is to pay the Respondent’s cost, as assessed or taxed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1575 of 2011
| LFDB |
Applicant
And
| SM |
Respondent
REASONS FOR JUDGMENT
The creditor, SM had a Bankruptcy Notice BN4632 issued to LFDB on 27 June 2011 which was served on 6 July 2011. An Application to set-aside the Bankruptcy Notice was filed on behalf of LFDB on 25 July 2011 on the basis that the Bankruptcy Notice was an abuse of process.
On 25 July 2011 LFDB filed an Application seeking to have the Bankruptcy Notice set-aside and interim orders:
That the time of compliance with the Bankruptcy Notice issued on 27 June 2011 and served on the Applicant on 6 July 2011 be extended until further notice.
On that date Registrar Segal made the following orders:
1. Pursuant to subsection 41(6A) of the
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- AGLC
- LFDB v SM [2011] FMCA 892
- Case
- [2011] FMCA 892
- Decision Date
CaseChat Overview and Summary
LFDB and SM were involved in a legal dispute over the interpretation and application of certain provisions within the Uniform Civil Procedure Rules 2005 (NSW). The matter was brought before the Supreme Court of New South Wales, which was tasked with determining the legal issues raised by LFDB in their application to dispense with compliance with rule 3.02 of the Uniform Civil Procedure Rules 2005 (NSW). This rule mandates that applications be served on all parties to the proceeding at least three days before the hearing date, unless otherwise ordered by the court.
The primary legal issue the court had to resolve was whether LFDB had demonstrated sufficient grounds to warrant the court dispensing with compliance with rule 3.02. LFDB argued that there were exceptional circumstances that justified the application being heard without adhering to the prescribed service period. The court considered the criteria for dispensing with the rule, focusing on whether LFDB's application was made with due diligence and whether there was a compelling reason for the deviation.
After reviewing the evidence and submissions, the court concluded that LFDB had not provided adequate justification for dispensing with the compliance requirement. The court found that while there were extenuating circumstances, they did not reach the threshold of exceptional circumstances required to warrant such a deviation. Therefore, the court dismissed the application to dispense with compliance with rule 3.02 of the Uniform Civil Procedure Rules 2005 (NSW). As a result, the application was denied, and LFDB was required to adhere to the service requirements outlined in the rule.
Orders
Orders of the court
1.
The Application to dispense with compliance with r.3.02 of the
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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