Liprini v Kerem & Anor (No.2)

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

1. The application and any outstanding interim applications are dismissed.

2. 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)

1. 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. 

2. 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…