FEDERAL CIRCUIT COURT OF AUSTRALIA
| MUELLER v SMARTCARD FINANCIAL SERVICES PTY LTD | [2017] FCCA 518 |
| Catchwords: BANKRUPTCY – Originating application to set aside Bankruptcy Notice – application for review of order of Registrar refusing adjournment –consideration of application for review as if it were application to review subsequent order of Registrar dismissing originating application. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.40(1)(g), 52(2) |
| Cases cited: Lahdo v Spearwood Holdings (WA) Pty Ltd [2014] FCCA 2285 Mueller v Smartcard Financial Services Pty Ltd & Anor [2017] HCASL 5 |
| Applicant: | KARL PAUL MUELLER |
| Respondent: | SMARTCARD FINANCIAL SERVICES PTY LTD |
| File Number: | PEG 607 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 17 March 2017 |
| Date of Last Submission: | 17 March 2017 |
| Delivered at: | Perth |
| Delivered on: | 17 March 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Mr J Burke |
| Solicitors for the Respondent: | MDS Legal |
ORDERS
The applicant’s application for review filed 22 December 2016 be dismissed.
The applicant pay the respondent’s costs in the sum of $900.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 607 of 2016
| KARL PAUL MUELLER |
Applicant
And
| SMARTCARD FINANCIAL SERVICES PTY LTD |
Respondent
REASONS FOR JUDGMENT
(Delivered orally and revised)
Introduction
On 1 December 2016 the originating application in these proceedings was filed seeking to set aside a bankruptcy notice. There were a variety of grounds put forward in the originating application and it was supported by two affidavits, one of which set out a new address for the applicant, Karl Paul Mueller (“Mr Mueller”), and another which repeated the grounds of the application and annexed various court documents, including a judgment of the District Court of Western Australia (“District Court”) against Mr Mueller in a sum slightly exceeding $500,000.
On 19 December 2016, the originating application came before a Registrar of this Court and orders were made for time for compliance with the bankruptcy notice to be extended to 4 pm on 20 February 2017 and for the application otherwise to be adjourned to 20 February 2017 at 2.30 pm. On 22 December 2016 Mr Mueller filed an application for review of the Registrar’s order of 19 December 2016. The application was for review of the decision to extend time for compliance and to adjourn the hearing of the originating application.
On 20 February 2017, the matter came back before a Registrar of this Court and it is common ground that for reasons which the Court does not need to go into, Mr Mueller did not attend before the Registrar. Before the Registrar, there was an affidavit of the lawyer for the respondent, Joseph Michael Burke (“Mr Burke”), either tendered or before the Court, and it is appropriate to read some of the relevant factual legal context from paragraphs 4 through to 7 of that affidavit:
4. On 29 January 2015, the District Court of Western Australia entered judgment in CIV 3634/2010 against the applicant in favour of the respondent (judgment).
5. On 10 November 2016, the…
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- Case
- [2017] FCCA 518
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the applicant had established a "genuine dispute" regarding the existence of the debt claimed in the statutory demand, or whether there was a "substantial injustice" that warranted setting aside the demand. This required the Court to consider the nature and strength of the applicant's defence to the alleged debt.
Judge Lucev found that the applicant had failed to demonstrate a genuine dispute about the existence of the debt. The applicant's defence relied on allegations of misleading and deceptive conduct and breach of contract by the respondent, but these claims were found to be unsubstantiated and lacking in sufficient particularity to raise a real question as to the respondent's entitlement to the debt. The Court applied the principles established in cases such as *Southern Cross Commodities Pty Ltd v. Kwinana Pty Ltd* and *Hale v. Worrell*, which require a defence to be more than a mere assertion and to have some factual or legal basis. As no genuine dispute was established, the Court did not need to consider the substantial injustice limb of s 459G(1)(b).
The application to set aside the statutory demand was dismissed.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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