Maley v Chief Commissioner of Land Tax, in the matter of Maley

[2000] FCA 1425

FEDERAL COURT OF AUSTRALIA

Maley v Chief Commissioner of Land Tax, in the matter of Maley [2000] FCA 1425

IN THE MATTER OF LEO EDMUND MALEY

LEO EDMUND MALEY v CHIEF COMMISSIONER OF LAND TAX
N 7808 OF 2000

TAMBERLIN J
SYDNEY
13 OCTOBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7808 OF 2000

IN THE MATTER OF: LEO EDMUND MALEY

BETWEEN:	LEO EDMUND MALEY APPLICANT
AND:	CHIEF COMMISSIONER OF LAND TAX RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	13 OCTOBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed with costs.

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 7808 OF 2000

IN THE MATTER OF: LEO EDMUND MALEY

BETWEEN:	LEO EDMUND MALEY APPLICANT
AND:	CHIEF COMMISSIONER OF LAND TAX RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	13 OCTOBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By application filed on 8 September 2000, Mr Maley seeks to set aside a Bankruptcy Notice served on him on 19 August 2000 (“the Notice”).  Alternatively, he seeks an order that the time for compliance with the Notice should be extended pending the determination of an appeal to the New South Wales Court of Appeal from the judgment of the District Court underlying the Notice.

2. The ground for the application is that the Notice was issued on the basis of a District Court judgment of 18 February 2000, in favour of the Chief Commissioner of State Revenue and against Mr Maley, in an amount of $267,346 together with interest and costs.  Mr Maley has lodged an appeal to the New South Wales Court of Appeal and the matter is listed for directions on 9 November 2000 with a view to fixing a hearing date.

3. Mr Maley contends that in view of the advanced stage of the appeal and the strength of his case the Notice should be set aside or alternatively the time for compliance should be extended under subs 41(6A) & (7) of the Bankruptcy Act 1966 (“the Act”).

4. The discretion of the Court under the Act is very broad. General considerations pertinent to the question whether a Bankruptcy Notice should be set aside or time extended, where an appeal is pending from the underlying judgment, are set out in the reasons for judgment of Sheppard J in Re Geard; Ex parte Reid (11 February 1994, unreported).  This decision was applied by Lehane J in Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 at 268 ff, and by Sackville J in Agrillo v Codisposto (16 December 1994, unreported).

5. Before me, apart from assertions as to the strength of his case on appeal and the proximity of a hearing, Mr Maley has not raised any matter which persuades me that he is more likely than not to succeed on the appeal.  At this stage of the proceeding it is not appropriate for me to express any view as to the prospects of success but there is nothing advanced to support a contention that his prospects of success are strong.  The claim in respect of which the District Court judgment was given is for unpaid land tax.  The sole issue raised before the District Court was whether there was proper service of the assessment and whether a Statutory Certificate should be accepted.  In relation to both matters the District Court found against Mr Maley. Nothing is specifically pointed to by Mr Maley which indicates any error in that decision.

6. In general a judgment creditor is entitled to enforce the judgment and secure the benefits of the favourable judgment which unless set aside operates as a final judgment. Mr Maley has not made any application for a stay of proceedings pending the outcome of the appeal.  This Court, in considering an extension application, will bear in mind the fact that if a stay is sought pending an appeal conditions as to security could be imposed.  In addition, it is important to appreciate that service of the Bankruptcy Notice, while it may give rise to an act of bankruptcy in the event of non-compliance, does not immediately affect the status of a debtor.  That transition in status only occurs at the later stage of making a Sequestration Order based on a Creditor’s Petition.

7. Having regard to these considerations my conclusion is that the application of Mr Maley should be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:  Dated:  13 October 2000

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	I Mescher
Solicitor for the Respondent:	Crown Solicitor’s Office
Date of Hearing:	3 October 2000
Date of Judgment:	13 October 2000