Maxwell-Smith v S and E Hall Pty Ltd

[2003] FMCA 162

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAXWELL-SMITH v S & E HALL PTY LTD [2003] FMCA 162

BANKRUPTCY – Application to set aside bankruptcy notice – notice based on Local Court judgment following determination of legal costs awarded in Supreme Court proceedings – Supreme Court review of proceedings in the Building Disputes Tribunal – leave to appeal against Supreme Court decision refused by NSW Court of Appeal and the High Court – attempt by the applicant to re-agitate the issues dealt with by the Building Disputes Tribunal – whether the bankruptcy court should go behind the decision of the Supreme Court – application dismissed.

Consumer Claims Tribunal Act 1987 (NSW)

Federal Court Rules

Applicant: EUGENE MAXWELL-SMITH

Respondent: S & E HALL PTY LTD

File No: SZ294 of 2003

Delivered on: 22 April 2003

Delivered at: Sydney

Hearing date: 22 April 2003

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent: Mr E Petersen

Solicitors for the Respondent: Sautelle White Lawyers

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, including any reserved costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ294 of 2003

EUGENE MAXWELL-SMITH

Applicant

And

S & E HALL PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. I have before me an application by Eugene Maxwell-Smith seeking to set aside bankruptcy notice NN284402, served on him and his wife.  There was a question in the hearing before me today whether Mrs Maxwell-Smith is also a party to the application.  I ruled that she was not a necessary party and the matter proceeded on the basis of the application of Mr Maxwell-Smith alone.

2. The applicant is self-represented and he raises a number of issues in opposition to the bankruptcy notice.  He raised an issue of estoppel but that was not pursued in the proceedings before me.  He also raised an issue about the absence of the assessor’s report relating to legal costs not being annexed to the bankruptcy notice served on him.  The position is that the bankruptcy notice is based upon a certificate of judgment from the Local Court at Bega, consequent upon an assessment of costs in proceedings in the Supreme Court of New South Wales.  I place no significance on the absence of the assessment from the bankruptcy notice.  The assessment clearly exists and I accepted it when tendered in the proceedings before me.

3. Mr Maxwell-Smith doubted whether the petitioning creditor actually incurred any legal costs in the Supreme Court proceedings given an apparent close relationship between the solicitors and the creditor.  However, his belief is no more than a suspicion and, in the circumstances, there is nothing before me on which to base a finding that no costs were in fact incurred by the petitioning creditor.

4. The import of the matters raised by the applicant is that I should go behind the Court decision supporting the bankruptcy notice.  That decision is on a narrow analysis, simply the costs…