Liprini v Kerem & Anor (No.2)
[2010] FMCA 244
•29 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIPRINI v KEREM & ANOR (No.2) | [2010] FMCA 244 |
| BANKRUPTCY – Bankruptcy notice based on solicitor/client debt – omission of date of issue in copy served – formal defect did not invalidate notice – no cross-claim against solicitor within s.40(1)(g) – application to set aside commenced after commission of act of bankruptcy – cross-claim could have been set up in other proceedings – solicitors engaged to represent executor in family provision litigation – client’s interests personally affected by litigation – whether indebtedness in personal capacity – application to set aside bankruptcy notice dismissed. |
| Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(6A), 41(7), 306(1), 244, Part XI Family Provision Act 1982 (NSW) |
| Adams v Lambert (2006) 228 CLR 409 Austrust Trade & Anor v Estate of the Late Evan Schomburgk Herbert & Anor [1998] FCA 1621 Brookfield & Anor v Davey Products Pty Ltd [1998] FCA, Mansfield J, unreported 25 September 1998 Liprini v Kerem & Anor t/as Law Partners [2010] FMCA 130 Liprini v Liprini [2009] NSWSC unreported 10 July 2009 Olivieri v Stafford (1989) 91 ALR 91 Re Brink; Ex parte The Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135 Re Ling;Ex parte Ling v Commonwealth (1995) 58 FCR 129 Reid v Hubbard [2003] FCA 1424 |
| Applicant: | ALLAN STEPHEN LIPRINI |
| First Respondent: | FIKRI KEREM T/AS LAW PARTNERS |
| Second Respondent: | ANDREW DANIEL T/AS LAW PARTNERS |
| File Number: | SYG 2674 of 2009 |
| Judgment of: | Smith FM |
| Hearing date: | 29 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 29 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr A Narayan |
| Solicitors for the Respondents: | Law Partners |
ORDERS
The application and any outstanding interim applications are dismissed.
The applicant must pay the costs of the respondents, including reserved costs, as agreed or taxed pursuant to the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2674 of 2009
| ALLAN STEPHEN LIPRINI |
Applicant
And
| FIKRI KEREM T/AS LAW PARTNERS |
First Respondent
| ANDREW DANIEL T/AS LAW PARTNERS |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Dr Liprini filed this application on 3 November 2009 seeking orders, in effect, to set aside a bankruptcy notice, No.3816 of 2009. There is evidence before me now that this bankruptcy notice was issued on 20 August 2009. There is no affidavit of service filed on behalf of the creditor, but Dr Liprini asserted in his application that it was served on him on 10 October 2009, and this has not been put in issue.
The bankruptcy notice demanded payment of the amount of $19,714.85, based on a judgment for $19,474.75 entered in the Local Court on 29 June 2009 plus an additional amount of interest. The creditors who served the notice were Dr Liprini’s solicitors in relation to family provision proceedings in the Supreme Court, whom I shall refer to as ‘Law Partners’. The evidence before me points to the judgment being a default judgment obtained in Local Court proceedings, in which they sued Dr Liprini for an unpaid solicitor’s invoice in relation to their work in the Supreme Court proceedings.
The bankruptcy notice required Dr Liprini to pay the amount claimed in the bankruptcy notice to Law Partners, or to make arrangements to that creditor’s satisfaction for the settlement of the debt, “within 21 days after service on you of this bankruptcy notice”. According to my calendar, 10 October 2009 was a Saturday, and 21 days thereafter expired on Saturday, 31 October. If weekends are to be ignored in the computation of time under a bankruptcy notice, which is a matter upon which I have received no submissions but I note Brookfield & Anor v Davey Products Pty Ltd [1998] FCA, Mansfield J, unreported 25 September 1998 at page 5, then the time for compliance expired on Monday, 2 November 2009. The present proceedings filed on 3 November 2009 were, therefore, on any view, commenced after the expiry of the bankruptcy notice, and after the commission of an act of bankruptcy at the conclusion of 2 November 2009.
A registrar on 3 November 2009 made an order purporting to extend time for compliance with the bankruptcy notice until 17 November 2009. However, no further extension of time was ordered when the matter was listed before a registrar on that day, and no later order of a registrar or of myself in the course of the proceedings has extended time on a nunc pro tunc basis. Since, on my above reasoning, an act of bankruptcy had already occurred before the commencement of the present application it would be futile for the court now to order an extension of time. There also would appear to be no power to do so under s.41(6A) of the Bankruptcy Act. Assuming that Dr Liprini has applied for an extension of time in his present application, I would refuse that application for both those reasons.
The application to set aside the bankruptcy notice was listed on several occasions before a registrar and myself. On 8 December 2009, I made directions for the filing of evidence, and set the matter down for hearing on 17 February 2010. On that day the hearing commenced but was adjourned, in circumstances explained in Liprini v Kerem & Anor t/as Law Partners [2010] FMCA 130. As my judgment indicates, Dr Liprini’s application was supported by confusing submissions and imprecisely defined grounds. I endeavoured to identify the possible issues raised by his material, going to the validity of the notice, and the court’s powers to set aside the bankruptcy notice on the ground identified in s.40(1)(g) and s.41(7). I indicated that the further hearing of the matter would be confined to those issues.
The issues which I isolated were:
(1)Whether the bankruptcy notice is invalid and should be set aside by reason of the absence of page 7 of the prescribed form.
(2)Whether the bankruptcy notice is invalid and should be set aside by reason of the absence of a date of issue on page 8.
(3)Whether the bankruptcy was invalidly issued and should be set aside by reason of the underlying indebtedness being incurred by the applicant solely in a representative capacity as executor of his father’s estate, and noting the provisions of Part XI of the Bankruptcy Act.
(4)Whether the bankruptcy notice was invalidly issued and should be set aside by reason of the applicant being given no notice of the Local Court proceedings.
(5)Whether the applicant has established a counter-claim etc within s.40(1)(g) of the Bankruptcy Act arising from the circumstances of his instructing the respondents, being a counter-claim which he could not have set up in the Local Court proceedings.
Nothing that has been said to me today on the resumed hearing causes me to redefine the above list of issues.
At the commencement of today’s hearing Dr Liprini applied for a further adjournment, upon the ground that he needed further time to locate lawyers who will be prepared to accept instructions from him in relation to this matter and his other litigation. His other litigation includes Dr Liprini’s appeal from the judgment of Nicholas J in Liprini v Liprini [2009] NSWSC, unreported 10 July 2009, and proceedings in this Court concerning a bankruptcy notice and petition based on orders made by Nicholas J in favour of Dr Liprini’s brother. I have adjourned those bankruptcy matters until after a hearing appointed in the Court of Appeal in April.
Dr Liprini tendered some documents in support of his adjournment application, and suggested that he needs more time to present evidence going to the fifth issue above. However, in my opinion, they did not demonstrate efforts to find legal representatives taken in a timely manner in relation to the present matter. I consider that he has not identified any good reason why I should adjourn the hearing again. Nor has he persuaded me that I should give him leave to file additional evidence, with or without adjournments, going to his complaints about Law Partners. I therefore refused the adjournment, and proceeded with the hearing today.
I have received affidavit and oral evidence from Dr Liprini, and from Mr Kerem, the solicitor from Law Partners having the carriage of the proceedings in the Supreme Court in which he was instructed by Dr Liprini.
In the course of today’s hearing, it emerged that the above issues 1, 2 and 4 were now not seriously contested by Dr Liprini. I am satisfied on evidence now before me, which he accepts, that the bankruptcy notice served on him in fact contained page 7 of the prescribed form, being the page containing the signature of the person authorised to apply for the bankruptcy notice.
I am also satisfied that the Office of the Official Receiver in fact stamped at least one copy of the bankruptcy notice when it was issued, with the date of issue, being 20 August 2009. This copy remained on the file of Law Partners and another copy was served on Dr Liprini, which was issued by the Official Receiver, and bore his or her official stamp, but inadvertently was not stamped with the date of issue. It is submitted, however, by Law Partners, that such a defect in the document served on Dr Liprini was, at most, a “formal defect or an irregularity” within the language of s.306(1) of the Bankruptcy Act.
I was not referred to any authority by either party whether the box provided in the form of bankruptcy notice which is headed “For official use only”, in which it is anticipated that the Office of the Official Receiver will insert a date of issue, the number of the bankruptcy notice proceedings, and an official signature or stamp, forms part of the essential requirements of a bankruptcy notice. However, assuming that it is an essential requirement of a bankruptcy notice that it demonstrates some official authentication marked in the box, in my opinion the absence of a date of issue in the present notice falls within the concept of a “formal defect or an irregularity” rather than an essential prerequisite of a valid notice. It is, therefore, subject to the provisions of s.306(1). I do not consider that a date of issue is itself a matter made essential to the validity of a bankruptcy notice under principles discussed by the High Court in Adams v Lambert (2006) 228 CLR 409. In the present case, there is no evidence that the absence of a date of issue on the copy of the notice served on Dr Liprini caused any confusion or misapprehension or other injustice on his part as to the nature of the document served and its requirements. I can find no substantial injustice caused by the defect, and in my opinion it did not result in the invalidity of the document served on Dr Liprini.
In relation to issue 4 and also issue 5, Dr Liprini now does not contest that he was duly served with a statement of claim issued in the Local Court by Law Partners. A copy of the statement of claim is in evidence, being in case number 728 of 2009. I accept that it was issued by the Local Court of New South Wales, and I accept that this document was probably the document which a process server deposes to have served on Dr Liprini on 6 March 2009. Dr Liprini has not contested that he was served with the document at around that time.
The documents upon which a default judgment was entered are not in evidence. However, the certificate of judgment attached to the bankruptcy notice, in my opinion, points towards the entry of such a judgment on 29 June 2009. Dr Liprini has not presented any evidence suggesting that that the default judgment was entered improperly and not in accordance with the Local Court Rules. I am therefore not persuaded that he was given no notice of the Local Court proceedings in time to defend them, or to bring a cross-claim or set-off, so as to avoid the entry of the default judgment.
There is no evidence that Dr Liprini has applied, or intends to apply, to the Local Court to set aside the default judgment. Nor is there any evidence of a proceeding on foot, or contemplated, in which he has formulated and presented claims to damages, set-off, or recovery of monies against Law Partners.
His claims against Law Partners are very poorly formulated in his evidence and submissions, notwithstanding that they dominate his case for setting aside the bankruptcy notice. Dr Liprini asserts that he has a claim against Law Partners, which he could set off against their fees when acting for him in the Supreme Court proceedings. He has presented fragments of evidence concerning the events in which they ceased to act for him in those proceedings. I have also received some evidence from Mr Kerem, who has also been cross-examined, as to those events.
In particular, his claims concern his attendance with his lawyers at a mediation in the Supreme Court proceedings on 6 December 2007, at the conclusion of which consent orders were agreed between the legal representatives of both sides. It is clear that Dr Liprini is now convinced that the terms of settlement did not properly reflect the instructions he had given to Mr Kerem and the barrister briefed on that occasion. He has unsuccessfully attempted to present his complaints about the settlement in the subsequent enforcement proceedings before Brereton J and Nicholas J, and it appears that he wishes to raise them in the forthcoming appeal.
For his part, Mr Kerem presented some evidence suggesting that the mediation was properly conducted, insofar as he and his barrister were involved in it. He claims that Dr Liprini signed written instructions to accept the settlement, and later confirmed or admitted giving those instructions. There is evidence that Dr Liprini felt regrets about the settlement the following day, and communicated his concerns to Mr Kerem in facsimiles which were then repeated and embellished on later days in stronger terms. These communications led to Law Partners informing him by letter on 31 January 2008 that they “have no other alternative than to cease acting on your behalf”. They therefore ceased to act and filed a notice of ceasing to act in the proceedings on 11 February 2008. Dr Liprini then engaged a further set of legal representatives, who acted for him in the enforcement proceedings.
Dr Liprini has attempted in his present application to obtain the findings of a court as to the truth of his account of what happened at the mediation, and in particular, in support of his general allegation that he is the victim of various malpractices on the part of his legal representatives and many other people. However, there are good reasons why I should not make any findings about these claims, and I am satisfied that it is unnecessary for me to do so in the course of the present application. There are two reasons, in my opinion, why it is unnecessary for me to make any findings about them deciding whether the bankruptcy notice should be set aside.
First, as I explained above, the present application was not brought before the time for compliance with the bankruptcy notice had expired. The extension of time ordered by the Registrar on 3 November 2009 was therefore ineffective, and there was no automatic extension of time under s.41(7) of the Bankruptcy Act. As I have indicated above, the Court would not now extend time nunc pro tunc. In those circumstances, it is not possible for Dr Liprini to satisfy the Court in terms of s.40(1)(g) “within the time specified in the notice” that he has “a counterclaim, set off or cross-demand equal to or exceeding the amount of judgment debt”. It would therefore be academic for the Court in the present proceedings to rule upon the existence of such claims.
A second reason for this conclusion is that Dr Liprini has not established that his claims against Law Partners are claims which he “could not have set up in the action or proceeding in which the judgment, or order was obtained” within s.40(1)(g). The Local Court statement of claim invoked the Local Court’s jurisdiction to enforce a claim in debt by the solicitors, upon their invoice in the amount of $16,500. It was not the registration of a costs assessment, in which Dr Liprini would not have an opportunity to present his cross-claims. Under the Local Court’s Rules, Dr Liprini had the opportunity before the entry of the default judgment, to file a defence and cross-claim raising all the allegations which he has now sketched to this Court. He did not take that opportunity which was available at law to him, and his personal explanations for not availing himself of it are irrelevant (see Re Brink; Ex parte The Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135, at 139, and Re Ling;Ex parte Ling v Commonwealth (1995) 58 FCR 129 at 132).
It is therefore unnecessary for me to make findings on the merits of Dr Liprini’s claims against Law Partners, in so far as they could provide grounds for setting aside the bankruptcy notice after arriving at the satisfaction referred to in s.40(1)(g) and s.41(7).
Nor, in my opinion, do Dr Liprini’s evidence and submissions in relation to his complaints about Law Partners raise grounds for looking behind the judgment debt itself. He does not appear to contend that Law Partner’s invoiced amount did not relate to legal work actually performed by them in the course of his instruction, nor that it was calculated in a manner inconsistent with their retainer. Rather, in my opinion, he claims that the actions of Mr Kerem contributed to his incurring a liability and expenses arising from the settlement with his brother signed at the mediation, and that he has causes of action against them allowing him to recover his losses from them by way of cross-claim or separate action. His arguments do not, except in relation to the third issue listed above, sufficiently raise a challenge to the underlying indebtedness of the default judgment itself.
In my opinion, the only basis upon which Dr Liprini’s evidence might raise a good reason for “going behind” the default judgment within the authorities cited in Olivieri v Stafford (1989) 91 ALR 91, would be by reference to the third issue which I identified in my earlier judgment. This is the remaining issue to be addressed in my present judgment. It considers whether the default judgment was based ‘in truth and reality’ upon a personal indebtedness of Dr Liprini, rather than upon an indebtedness owed in a representative capacity only. In particular, whether Law Partners are shown to have provided their services on his instructions taken only in his capacity as executor of the estates of his deceased father and mother, and on the express or implicit assumption that the estates, and not Dr Liprini, would be liable for payment of their fees.
In my opinion, if Dr Liprini’s liability had this representative character, then service of a bankruptcy notice could have no legal significance and it would be appropriate to set the notice aside. The statutory purpose of the bankruptcy notice was to obtain a personal act of bankruptcy by Dr Liprini, upon which his personal estate could be made available to creditors of his personal estate through insolvency administration. If Law Partners had no standing as creditors in relation to his personal estate, then it is contrary to the scheme of the Bankruptcy Act for them to serve a bankruptcy notice based upon his indebtedness as executor of one or both deceased estates. This is because the Act provides a scheme for insolvency administration of deceased estates under Part XI which does not involve the service by an estate creditor of a bankruptcy notice on the executor, nor the commission of an act of bankruptcy under s.40 by the executor whether in relation to indebtedness arising in a personal or a representative capacity. So much, in my opinion, appears obvious from s.244 of the Bankruptcy Act and the provisions of Part XI.
I am unaware of authority which directly supports my above opinion. The two cases to which I was referred by counsel for Law Partners, being Reid v Hubbard [2003] FCA 1424 and Austrust Trade & Anor v Estate of the Late Evan Schomburgk Herbert & Anor [1998] FCA 1621 do not, in my opinion, provide any authority to the contrary. As I would understand the facts in each of those cases, it appears that an executor had been found liable personally to pay the legal costs which were the subject of both of those proceedings.
It appears to me that, if I were satisfied that Dr Liprini engaged Law Partners to provide their legal services to him purely in his representative capacities, and without incurring personal liability for their fees, then it would be appropriate to set aside the bankruptcy notice. This would make clear that service of the notice was an irrelevance to any liability of the estate to insolvency proceedings, and would also make clear that Dr Liprini’s non-compliance with the notice could not give rise to an act of bankruptcy upon which a petition for insolvency administration of his personal estate could be based. In effect, it would establish that a relevant indebtedness upon which s.40(1)(g) could operate did not exist, so that the notice was invalidly issued.
However, the evidence before me does not leave me satisfied as to this issue, in favour of Dr Liprini.
The evidence on the issue was very poorly elicited by both parties. Partly, this might have been because I doubt whether it was an issue ever adverted to by Law Partners when they took instructions from Dr Liprini. On Dr Liprini’s part, I doubt whether he has ever appreciated the distinction which it turns upon. Neither party presented any evidence of relevant correspondence or conversations bearing on the issue at the time when Law Partners acted for Dr Liprini, nor subsequently.
Law Partners tendered a written agreement for the provision of client services, which appears to have adopted a precedent better suited for taking instructions from a claimant against an estate, rather than from an executor defending a claim. It certainly provides no clarity as to the capacity in which Dr Liprini was incurring liability to pay the agreed fees for the solicitor’s work. It said:
Thank you for your instructions to provide legal advice and representation in relation to your family provision/estate matter. This document discloses information about the cost of our legal service and your rights as required by the Legal Profession Act.
1.LEGAL SERVICES TO BE PROVIDED BY LAW PARTNERS
To advise you in relation to your family provision/ estate matter, to obtain all evidence in support of your claim, to negotiate settlement of your claim with the defendant or their nominated solicitors, to brief a barrister if required, to prepare your claim for hearing in the event that a settlement is unable to be achieved, to attend hearing if required and to undertake all other work necessary to bring about a resolution of your claim.
It is common ground that, at the time that this service agreement was signed by Dr Liprini on 22 August 2007, the proceedings in the Supreme Court brought against him by his brother had already been on foot for some time. Dr Liprini had previously been represented by other solicitors on the record, whose instructions he had withdrawn in or around July 2007. It appears likely that at that time evidence from both parties had been filed, and the nature of the proceedings may well have become clarified. However, none of that background is before me, other than the originating summons in the Supreme Court in proceedings 3790 of 2006. This adopted a normal precedent in a family provision claim, seeking:
1.An order pursuant to Section 7 of the Family Provisions Act 1982 that provision be made for the maintenance and advancement in life of the plaintiff out of the estate and/or notional estate of James Natale Liprini late of Sylvania Waters in the State of New South Wales.
2.An order that the costs of the plaintiff be paid out of the assets of the estate on a party and party basis.
3.An order that the costs of the defendant be paid out of the assets of the estate on an indemnity basis.
4.Such further and other orders as the Court thinks fit.
Normally, a summons in those terms would be understood as doing no more than making a claim against a deceased estate, and as joining the defendant solely in a capacity as executor of the estate. It is well established that it is normally unnecessary and inappropriate to join the beneficiaries of the estate as defendants to such a claim. The defendant executor is expected to defend the provisions of a will, regardless of whether the executor is or is not also a beneficiary in the estate. The summons which joined Dr Liprini as defendant did not, in terms, contain any application for the designation of notional estate, including notional estate by way of distributed estate held by him or any other person personally, pursuant to s.24 of the Family Provision Act1982 (NSW). There is also no evidence before me that any of the factual issues raised by ss.27 and 28 in relation to notional estate were addressed in the affidavits filed by either side in the proceedings. Prima facie, therefore, Law Partners were engaged to act as solicitors on the record in proceedings in which Dr Liprini had been joined as defendant solely in his representative capacity, and in which his costs were expected to be paid from his father’s estate.
However, the additional circumstances of the litigation which emerge from the judgments of Brereton and Nicholas JJ suggest that notional estate issues involving a potential personal liability of Dr Liprini were, at least, present at the time of their engagement and at the time of the mediation which brought their engagement to an end. Dr Liprini’s brother had commenced his proceedings in relation to his father’s estate at a time when their mother, who enjoyed a life interest in the principal assets of the estate, was still alive. She later died before Law Partners were engaged, and Dr Liprini had become the principal beneficiary of both the estates, to the exclusion of his brother. His father’s estate had been substantially distributed by the transfer of property to Dr Liprini or to his mother prior to the commencement of the proceedings, and her dispositions in favour of Dr Liprini may have then been in the course of administration. In such circumstances, everyone seems to have understood that any substantial provision in favour of Dr Liprini’s brother would need to be located beyond any currently held assets in the father’s estate, and probably in assets which had passed to Dr Liprini from his mother’s estate. However, there is no suggestion in the judgments that Dr Liprini’s brother had brought any Family Provision Act claims in relation to his mother’s estate at that time or indeed subsequently.
In the above circumstances, it is, therefore, readily conceivable that Dr Liprini’s personal interests were intimately involved in the matter being litigated at the time when he engaged Law Partners to advise and act for him in the litigation, even if no formal claim for designating notional estate from his personal property had yet been made by his brother. It seems to me likely that he employed Law Partners to advise him in relation to his personal interests, as well as in his capacity as executor. I am certainly not persuaded to the contrary on the evidence currently before me.
The possibility that Dr Liprini undertook a personal liability when engaging the services of Law Partners tends to be confirmed, rather than otherwise, by subsequent events. The evidence before me shows that the administration of both estates was the subject of correspondence between the parties to the Supreme Court proceeding. As the judgments of Brereton and Nicholas JJ indicate, the background circumstances to the mediation appear to have clearly included assumptions as to Dr Liprini’s unfettered powers to dispose of the assets of both estates, including assets which had been distributed or might be distributed to him personally.
The problem which has given rise to the subsequent litigation between Kevin Liprini and Dr Liprini arises from the consent orders agreed at the end of the mediation. As Brereton J held, these did not in their terms give rise to a personal liability on Dr Liprini, whether in debt or otherwise. The consent orders were in the terms of the summons, making provision for the brother “out of the estate of the late James Natale Liprini in the sum of $750,000” and for the legal costs of both parties to be paid from that estate. As his Honour explained:
14 The cases which I have referred to make clear, if anything remained to be made clear in light of the terms of s 14, that an order made under the Family Provision Act for provision out of an estate is a unique form of order which in effect is not really a judgment or order of the Court at all. It has effect not as a court order, but as a codicil to the Will; and is to be enforced not as a court order but as a codicil, by the remedies which a beneficiary has against a defaulting executor. Such an order does not bind the executor, who is a defendant to the Family Provision Act proceedings, as an order for payment of money or to do an act or thing, but only in an indirect manner insofar as it imposes a new obligation in the trusts of the Will, to be enforced as such.
The subsequent proceedings before Nicholas J were in the nature of an administration proceeding, which also might appear only to have resulted in orders directed at Dr Liprini in relation to his estate administration, although it is arguable that they imposed personal liabilities by way of debt on Dr Liprini. This is an issue which I am not deciding in the present case, and I would not wish to be understood as deciding, since it is an issue arising in proceedings which have yet to be argued in front of me involving Dr Liprini and his brother. The issue may be clarified by the Court of Appeal in the appeal from Nicholas J.
In my opinion, even assuming that the outcome of the mediation and of the subsequent litigation was not to impose any personal indebtedness on Dr Liprini, this does not exclude the strong possibility that the lawyers acting for him in the course of the mediation were employed to advise him in relation to his personal position generally in relation to the two estates and the Family Provision Act proceedings which were on foot.
Taking into account all the evidence before me, I have not been persuaded that Dr Liprini did not employee Law Partner personally to advise and act for him in all capacities in the course of the period for which they took his instructions concerning this litigation. I am not persuaded that, in truth and reality, he did not incur personal liability for their fees. I am, therefore, not persuaded that there are grounds for doubting the form of the judgment in the Local Court as imposing a personal liability on Dr Liprini, nor that the bankruptcy notice was invalidly addressed to Dr Liprini in his personal capacity.
For the above reasons, I have found no ground for giving relief as sought in the present application, that is, by way of setting aside the bankruptcy notice. The application must, therefore, be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 19 April 2010
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