McWilliam v Jackson

[2000] FCA 175

FEDERAL COURT OF AUSTRALIA
McWilliam v Jackson [2000] FCA 175

BANKRUPTCY – Bankruptcy notice – Application to set aside bankruptcy notice - Validity of notice – Creditor identified in notice as “Anthony Jackson & Ors” – Whether sufficient identification of creditor – Notice signed on behalf of agent of creditor by her employee – Whether this constituted substantial compliance with requirements of regulations – Whether “formal defect” or “irregularity” not giving rise to possible prejudice – Alternative application for declaration that debtor had established the existence of a counter-claim, set-off or cross demand that could not be set up in proceeding in which judgment obtained – Whether pending appeal may constitute a counter-claim, set-off or cross demand.

Bankruptcy Act 1966, ss 40, 41 and 306
Bankruptcy Regulations, reg 4.02
Federal Court Rules, Order 45 rule 9
Acts Interpretation Act 1901, s25C
Legal Profession Act 1987 (NSW), ss 202, 206 and 208J

BRUCE SCOTT McWILLIAM v ANTHONY JACKSON & ORS
N8290 of 1999

WILCOX J
SYDNEY
25 FEBRUARY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N8290 of 1999

IN THE MATTER OF BRUCE SCOTT McWILLIAM

BETWEEN:	BRUCE SCOTT McWILLIAM Applicant
AND:	ANTHONY JACKSON & ORS Respondent
JUDGE:	WILCOX J
DATE OF ORDER:	25 FEBRUARY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.It be declared that bankruptcy notice 2084/99, issued against the applicant, Bruce Scott McWilliam, on 25 October 1999, is a nullity.

2.Anthony Jackson pay the costs of the said applicant of this proceeding.

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	N8290 of 1999

IN THE MATTER OF BRUCE SCOTT McWILLIAM

BETWEEN:	BRUCE SCOTT McWILLIAM Applicant
AND:	ANTHONY JACKSON & ORS Respondent

JUDGE:	WILCOX J
DATE:	25 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. WILCOX J: This is the hearing of an application to set aside a bankruptcy notice served on the applicant, Bruce Scott McWilliam, on 1 November 1999. The Application was filed on 22 November 1999, within the period of 21 days specified in the bankruptcy notice for compliance with its requirements. That being so, time for compliance with the notice was able to be extended: see s41(6A) of the Bankruptcy Act 1966. Time was in fact extended, on two occasions, by a Deputy Registrar of the Court. By the second order, time was extended until the resolution of the current proceeding.

   The facts

2. The evidence establishes that in 1988 Mr McWilliam, his father, Bruce McWilliam Snr, and his brother, Peter Bruce McWilliam, instituted in the Supreme Court of New South Wales an action claiming damages in respect of various causes of action that were claimed to arise out of the termination in 1982 of a publishing relationship between a company, ADM Franchise Pty Limited, in which the plaintiffs claimed to have had interests, and Penthouse Publications Ltd.  Penthouse Publications was the first defendant.  The second defendant was Anthony Charles Badham Jackson,…