Matheson v Scottish Pacific Business Finance Pty Ltd
[2004] FMCA 600
•31 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MATHESON v SCOTTISH PACIFIC BUSINESS FINANCE PTY LTD | [2004] FMCA 600 |
| BANKRUPTCY – Application to set aside bankruptcy notice – no defect in notice – notice based upon judgment debt – no reason to look behind the judgment – application dismissed. |
Bankruptcy Act 1966 (Cth), s.41
District Court of Queensland Act 1967 (Qld)
Supreme Court Act 1995 (Qld), s.48
| Applicant: | FREDERICK JAMES MATHESON |
| Respondent: | SCOTTISH PACIFIC BUSINESS FINANCE PTY LTD |
| File No: | BRG299 of 2004 |
| Delivered on: | 31 August 2004 |
| Delivered at: | Brisbane |
| Hearing date: | 31 August 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondent: | Mr M Makridakis Clayton Utz |
ORDERS
The application is dismissed with costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG299 of 2004
| FREDERICK JAMES MATHESON |
Applicant
And
| SCOTTISH PACIFIC BUSINESS FINANCE PTY LTD |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed on 15 June 2004, which on its face, seeks a stay of bankruptcy notice. In substance, however, the application has been accepted as an application pursuant to s.41(6A) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) to set aside the bankruptcy notice served on the applicant, Mr Matheson. The bankruptcy notice itself is annexed to an affidavit filed by Mr Matheson on 15 June 2004.
It occurred to me that there might be a defect in the bankruptcy notice in relation to the interest annexure in as much as the required schedule attached to the bankruptcy notice claims interest pursuant to s.48 of the Supreme Court Act 1995 (Qld) (“the Supreme Court Act”), while the judgment debt was obtained in the District Court of Queensland. I have during the course of proceedings today, however, satisfied myself that in respect of proceedings in the District Court of Queensland interest is properly claimable and payable pursuant to s.48 of the Supreme Court Act rather than any provision of the District Court of Queensland Act 1967 (Qld). In the circumstances, there is no defect in the bankruptcy notice in relation to the interest rate provision.
Mr Matheson relies upon a substantial amount of affidavit material which is handwritten. He has also appeared today and made oral submissions. The documentary material appears to amount to an assertion that there is no debt supporting the bankruptcy notice, notwithstanding that the bankruptcy notice is founded upon a judgment of the District Court of Queensland in defended proceedings. The applicant asserts that the wrong person was sued and that the proper debtor is in fact a trust rather than himself personally.
I reject that contention on the basis of the documents annexed to Mr Matheson's affidavit filed on 15 June 2004 as well as on the basis of affidavit material filed on behalf of the respondent creditor. That establishes that in the District Court proceedings Mr Matheson was sued in a personal capacity and, far from asserting any trust, his defence in those proceedings denied the existence of a trust. In the circumstances, I do not see how he can in these proceedings assert the opposite.
In his oral submissions, Mr Matheson appeared to be claiming that the debt acquired by Scottish Pacific Business Finance Pty Ltd from a company called Allans Services Limited (now in liquidation) was not in law or fact a true debt. This was a further invitation to me to look behind the judgment in the District Court.
I received today, in addition to written submissions by Mr Makridakis, on behalf of the creditor, an affidavit by Mr Makridakis and an affidavit by Alan John Rippon, client manager of Scottish Pacific Business Finance Pty Limited. I gave Mr Matheson a short opportunity to cross-examine Mr Rippon on that affidavit. Mr Matheson was unsuccessful in that cross-examination in pointing to any lack of value in the debt acquired by Scottish Pacific Business Finance from Allans Services Limited.
In the circumstances, there is nothing before me that persuades me that there is a proper basis to look behind the judgment of the District Court supporting the bankruptcy notice. There is no other basis apparent to me upon which Mr Matheson can attack the bankruptcy notice. He will no doubt have a further opportunity to seek to do so, should a creditor’s petition be filed. Mr Matheson is already a bankrupt. Subject to any extension, his present bankruptcy is, I am told, due to expire on 2 May 2005. In the circumstances, I see no detriment to Mr Matheson in dealing with these proceedings today with the consequence that he will commit a further act of bankruptcy.
There may well be an issue, should there be a hearing of a creditor’s petition, as to whether there is any point in a further sequestration order being made, or even whether it is open to make a further sequestration order during the period of the current bankruptcy. Those are issues that can be dealt with on that later occasion, if it arises.
For present purposes, I am not satisfied that Mr Matheson has advanced any reason to go behind the judgment of the District Court. Neither am I satisfied that Mr Matheson has identified any other basis on which the bankruptcy notice served upon him should be set aside. In the circumstances, I will dismiss his application with costs.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 20 September 2004
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