McKinnon v Commonwealth Bank (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

McKINNON & ANOR v COMMONWEALTH BANK (No.2) [2004] FMCA 209

BANKRUPTCY – Application to set aside bankruptcy notice – notice against two debtors – whether notice should have been served on both at same time – whether judgment against debtors stayed – whether notice abuse of process – application to set aside dismissed.

Supreme Court Act 1986 (Vic), s.101

Penalty Interest Rates Act 1983 (Vic), s.2

Bankruptcy Act 1966, ss.40(1)(g), 41(1)

First Applicant: JEANETTE BEVERLEY DAWN McKINNON

Second Applicant: DONALD NEIL MCKINNON

Respondent: COMMONWEALTH BANK OF AUSTRALIA

File No: MZ 317 of 2004

Delivered on: 29 March 2004

Delivered at: Melbourne

Hearing Date: 29 March 2004

Judgment of: Phipps FM

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr A.W. Ellis

Solicitors for the Respondent: Ryrie Bridges

ORDERS

1. THAT the Application be dismissed.

2. THAT the Applicants pay the Respondent’s costs including costs reserved to be taxed in accordance with the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 317 of 2004

JEANETTE BEVERLEY DAWN McKINNON

First Applicant

and

DONALD NEIL McKINNON

Second Applicant

and

COMMONWEALTH BANK OF AUSTRALIA

Respondent

REASONS FOR JUDGMENT

1. This is an application to set aside a bankruptcy notice.  The application was filed on 15 March 2004 in the Federal Court of Australia and subsequently transferred to this court.  It is an application by both Jeanette Beverley Dawn McKinnon and Donald Neil McKinnon.

2. The bankruptcy notice was issued by the Official Receiver on 10 October 2003. It requires the applicants to pay the sum of $281,994.35. It is based on a judgment of the Supreme Court of Victoria of 27 June 2001 which was judgment for the respondent against the applicants in the sum of $222,985.29. The balance of the amount claimed is interest of $59,009.06 calculated in accordance with s.101 of the Supreme Court Act 1986 (Vic) at the rate prescribed by s.2 of the Penalty Interests Rate Act 1983 (Vic).

3. The bankruptcy notice has been the subject of an application by either the first-named applicant, Jeanette McKinnon, or both applicants in the Federal Court.  The bankruptcy notice was served on the second applicant on 28 October 2003 and on the first applicant on 24 February 2004.  I say that statement subject to dealing with arguments which are put in relation to that.  Application was made to Registrar Mussett for an extension of time for compliance with the bankruptcy notice which was refused.  An application for review of the decision of the Registrar was made and that was dealt with by Weinberg J.  He refused to review the decision.  An application for leave to appeal from the interlocutory order of Weinberg J was refused by Ryan J on 24 March 2004. 

4. The attack on the bankruptcy notice is threefold.  First is service.  The notice was served on the second-named applicant on 28 October 2003 and not served for a considerable amount of time on the first-named applicant.  Prior to service on the first-named applicant a creditor's…