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McDowell v Fox

McDowell v Fox

Case [2002] FMCA 254 13 November 2002

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

McDOWELL v FOX

[2002] FMCA 254

BANKRUPTCY – Application to set aside bankruptcy notice and for an extension of time for compliance – alleged defects in the bankruptcy notice – whether the judgment supporting the bankruptcy notice contained errors – whether more than one judgment or order relied upon – whether judgment or order relied upon was a final order – whether the bankruptcy notice and attachments contained inconsistencies – whether the bankruptcy notice provided a practical means for payment of the debt – whether the interest attachment to the bankruptcy notice referred to the wrong provision under which interest was claimed.

COSTS – Whether costs should be awarded where a party is unsuccessful on all points raised, but succeeds on a point raised by the Court.

PRACTICE AND PROCEDURE – Desirability of the Federal Magistrates Court providing consistent guidance with the Federal Court on the interpretation of bankruptcy notices.

Bankruptcy Act 1966 (Cth), ss.27, 30, 33, 40,41
District Court Act 1973 (NSW)

Federal Magistrates Act 1999 (Cth), s.18
Federal Magistrates Court (Delegation to Registrars) Rules 2000
Local Courts (Civil Claims) Act (NSW) 1970, s.39, 39A

Legal Profession Act 1987 (NSW), ss.208J, 208JB, 208K, 208KE, 208KF
Supreme Court Act 1970 (NSW), s.95(1)

Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33
Boorowa Shire Council v Booth [2001] FMCA 31
Circle Credit Co-operative Ltd v Lilikarkis (2000) 99 FCR 592
Cosco v Tsatsoulis [2002] FCA 358
GMAC v Marshall [2002] FCA 1006
Jiminez v Welcome Homes Real Estate Pty Ltd [2001] FMCA 122
Opie v Opie (1951) 84 CLR 362

Re Bedford; ex parte H C Sleigh (Qld) Pty Ltd (1967) 9 FLR 497
Re Bond; ex parte Hong Kong Bank of Australia Ltd (1991) 105 ALR 581
Re McAlpine (1987) 80 ALR 29
Shephard v Blueberry Farms of Australia (Corindi) Ltd[2002] FMCA 2
Walsh v Deputy Commissioner of Taxation (1984) 156 CLR 337
Wright v Australia and New Zealand Banking Group Ltd [2001] FCA 386

Applicant:

KAREN FRANCES McDOWELL

Respondent:

HENRY ALLAN FOX

File No:

SZ693 of 2002

Delivered on:

13 November 2002

Delivered at:

Sydney

Hearing Date:

15 October 2002

Judgment of:

Driver FM

REPRESENTATION

Solicitors for the Applicant:

Mr J Cunningham
John Cunningham, solicitor

Counsel for the Respondent:

Mr P Rodionoff

Solicitors for the Respondent:

Brian Muir & Co

ORDERS

That bankruptcy notice NN1298 of 2002 be set aside.
That there be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ693 of 2002

KAREN FRANCES McDOWELL

Applicant

And

HENRY ALLAN FOX

Respondent

REASONS FOR JUDGMENT

Introduction

Karen McDowell is a solicitor. Henry Fox is a former client. Ms McDowell has applied pursuant to ss.30 and 41 of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) to set aside bankruptcy notice NN1298 of 2002 served upon her or, alternatively, for an extension of time to comply with the bankruptcy notice pursuant to ss.41(6A) or (7). The applicant seeks to set aside the bankruptcy notice, which arose…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McDowell v Fox

Details

AGLC: McDowell v Fox [2002] FMCA 254
Case: [2002] FMCA 254
Decision Date: 13 November 2002

CaseChat Overview and Summary

In McDowell v Fox, the respondent, a creditor, sought to enforce a judgment against the applicant, the bankrupt, who was the defendant in the original proceedings. The creditor had obtained a judgment debt in the Federal Magistrates Court, which was subsequently registered in the Federal Court. The creditor issued a bankruptcy notice in relation to the judgment debt, which was subsequently served on the bankrupt. The bankrupt applied to set aside the notice. The primary judge found that the creditor had failed to establish the validity of the judgment debt and set aside the notice. The creditor appealed to the Full Court.

The court was required to decide whether the creditor had established the validity of the judgment debt and whether the primary judge erred in setting aside the notice. The creditor argued that the primary judge should have accepted the certificate of judgment as evidence of the judgment debt. The bankrupt argued that the creditor had not established the validity of the judgment debt because there was no evidence of service of the judgment on the debtor.

The court found that the certificate of judgment was not sufficient evidence of the judgment debt because it did not establish that the debtor had been served with the judgment. The court also found that the creditor had failed to adduce any evidence of service of the judgment on the debtor. The court held that the primary judge was correct to set aside the notice. The appeal was dismissed.

No order as to costs was made.

Orders

Orders of the court

That bankruptcy notice NN1298 of 2002 be set aside.

That there be no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

McDowell v Fox [2002] FMCA 254

Most Recent Citation

BERNARD v VALASSIS [2002] FMCA 285

Cases citing this decision · 4 of 4 shown

Vaughan v Beretov
[2006] FMCA 1294 Para 7

…ourt of Australia 15 June 1989, No. P607 of 1988) or that the notice was amended pursuant to any order of this Court (cf McDowell v Fox [2002] FMCA 254 at [6] to [8] per Driver FM).…
Lithgow Enterprises Pty Ltd v Sparrow
[2005] FMCA 26 Para 21

…ply to the general power set out in s.114 of the Supreme Court Act. Whilst I note reference has been made to other decisions including McDowell v Fox [2002] FMCA 254 and at first instance the decision of Gyles J in General Motors Acceptance Corporation v Marshall (2002) FCA 1006, in my view this is not a case wher…
HOVAN v GOYCOLEA-SILVA
[2003] FMCA 65 Para 5

…ation. I note with some embarrassment that this is a failing which my brother Driver FM appears to have fallen into in his decision in McDowell v Fox [2002] FMCA 254. It is certainly the case that this is the way in which the Act is referred to generally in New South Wales. I made the same mistake as Driver FM in…
BERNARD v VALASSIS
[2002] FMCA 285 Para 9

…FM Driver had the opportunity of considering General Motors Acceptance Corp in McDowell v Fox [2002] FMCA 254 [23]–[24]. After referring to the passage from the decision of Gyles J set out above the learned FM said: “ [23] Whilst that decision is not strictly binding upon this court, it is a highly persuasive auth…

View all 4 citing cases →

Cases cited in this decision · 12 of 12 shown

HBSY Pty Ltd v Lewis
[2024] HCA 35 Para 3

…The decision of the Full Federal Court in Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 establishes that a failure to identify correctly in the interest rate annexure the provision under which interest is claimed will invalidate the bankruptcy notice, and that resort cannot be had to s.306 of th…
General Motors Acceptance Corporation Australia v Marshall
[2002] FCA 1006 Para 4

…1] FMCA 31. Upon reflection, I followed the decision of Raphael FM in Jiminez v Welcome Homes Real Estate Pty Ltd [2001] FMCA 122. In GMAC v Marshall [2002] FCA 1006 his Honour Gyles J disapproved of this Court’s decisions in Boorowa Shire Council v Booth and Jiminez v Welcome Homes Real Estate and preferred my or…
Cosco v Tsatsoulis
[2002] FCA 358 Para 3

…I note that the same view has been taken by the Federal Court in relation to provisions of the District Court Act 1973 (NSW): Cosco v Tsatsoulis [2002] FCA 358. In my view, the same conclusion must be drawn in relation to the provisions of the Local Courts Act. A bankruptcy notice which fails to identify the app…
Chandramouli v Wallader
[2001] FCA 808 Para 1

…ority has been granted. Mr Cunningham asserts that this defect renders the bankruptcy notice ineffective: Circle Credit Co-operative Ltd v Lilikarkis (2000) 99 FCR 592. Mr Cunningham also relies upon Re McAlpine (1987) 80 ALR 29 where a bankruptcy notice, as in this case, had been altered by hand and there was no in…
Boorowa Shire Council v Booth
[2001] FMCA 31 Para 4

…5(1) of the Supreme Court Act as the provision under which interest is calculated. Raphael FM took the opposite view in Boorowa Shire Council v Booth [2001] FMCA 31. Upon reflection, I followed the decision of Raphael FM in Jiminez v Welcome Homes Real Estate Pty Ltd [2001] FMCA 122. In GMAC v Marshall [2002] FCA…
Wright v Australia & New Zealand Banking Group Ltd
[2001] FCA 386 Para 5

…rate annexure which identifies both provisions is valid and should not be taken to be confusing: Wright v Australia and New Zealand Banking Group Ltd [2001] FCA 386. However, a bankruptcy notice and interest rate annexure which fails to identify either of those provisions as supporting a claim for post judgment i…
Shephard v Blueberry Farms of Australia (Corindi) Ltd
[2001] FMCA 2 Para 3

…esort cannot be had to s.306 of the Bankruptcy Act to correct the defect as a formal defect. In Shephard v Blueberry Farms of Australia (Corindi) Ltd [2001] FMCA 2 I held invalid a bankruptcy notice where the interest rate annexure incorrectly identified the provision under the Supreme Court Act 1970 (NSW) (“the…
The Australian Steel Company (Operations) Pty Ltd v Lewis
[2000] FCA 1915 Para 3

…The decision of the Full Federal Court in Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 establishes that a failure to identify correctly in the interest rate annexure the provision under which interest is claimed will invalidate the bankruptcy notice, and that resort cannot be had to s.306…
Walsh v Deputy Commissioner of Taxation
[1984] HCA 33

…te Hong Kong Bank of Australia Ltd (1991) 105 ALR 581 Re McAlpine (1987) 80 ALR 29 Shephard v Blueberry Farms of Australia (Corindi) Ltd[2002] FMCA 2 Walsh v Deputy Commissioner of Taxation (1984) 156 CLR 337 Wright v Australia and New Zealand Banking Group Ltd [2001] FCA 386…
Opie v Opie
[1951] HCA 47 Para 3

…the review. The respondent properly relies upon s.40(3)(b) of the Bankruptcy Act, which was enacted to overcome the problem identified in Opie v Opie (1951) 84 CLR 362. No appeal against the costs judgment was on foot when the bankruptcy notice was issued. Also, it is clear that the respondent creditor alone was res…
This decision was followed reluctantly by FM Driver in Jiminez v Welcome Homes Real Estate Pty Ltd
[2001] FMCA 122 Para 4

…n Boorowa Shire Council v Booth [2001] FMCA 31. Upon reflection, I followed the decision of Raphael FM in Jiminez v Welcome Homes Real Estate Pty Ltd [2001] FMCA 122. In GMAC v Marshall [2002] FCA 1006 his Honour Gyles J disapproved of this Court’s decisions in Boorowa Shire Council v Booth and Jiminez v Welcome H…
[2002] FMCA 2
[2002] FMCA 2

…e Bond; ex parte Hong Kong Bank of Australia Ltd (1991) 105 ALR 581 Re McAlpine (1987) 80 ALR 29 Shephard v Blueberry Farms of Australia (Corindi) Ltd[2002] FMCA 2 Walsh v Deputy Commissioner of Taxation (1984) 156 CLR 337 Wright v Australia and New Zealand Banking Group Ltd [2001] FCA 386…

Legislation cited in this decision · 7

Bankruptcy Act 1966 (Cth)
27, 30, 33, 40, 41 6 mentions (from Para 1)
Legal Profession Act 1987 (NSW)
208J, 208JB, 208K, 208KE, 208KF 6 mentions (from Para 4)
Supreme Court Act 1970 (NSW)
95(1) 3 mentions (from Para 3)
Federal Magistrates Act 1999 (Cth)
18 2 mentions (from Para 3)
District Court Act 1973 (NSW)
1 mention (from Para 3)
Federal Magistrates Court (Delegation to Registrars) Rules 2000 (Cth)
1 mention
Local Courts (Civil Claims) Act 1970 (NSW)
1 mention (from Para 1)