FEDERAL COURT OF AUSTRALIA
Ogbonna v CTI Logistics Limited [2021] FCA 1491
File number: WAD 338 of 2019 Judgment of: COLVIN J Date of judgment: 29 November 2021 Catchwords: BANKRUPTCY AND INSOLVENCY - application to set aside bankruptcy notice - where application relied upon existence of counterclaim, set-off or cross-demand being claim in defamation for damages - where defamation claim dismissed and attempts to appeal unsuccessful - where applicant now seeks to rely on claim of fraud, conspiracy and judicial corruption in rejection of defamation claim as basis to set aside bankruptcy notice - whether requirements of r 2.06 of Federal Court (Bankruptcy) Rules 2016 (Cth) should be dispensed with - where respondents provided submissions in accordance with case management orders instead of filing notice of grounds of opposition and supporting affidavit - application dismissed Legislation: Defamation Act 2005 (WA) s 28
Federal Court (Bankruptcy) Rules 2016 (Cth) r 2.06
Cases cited: Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593
CFB18 v Reader Lawyers & Mediators [2018] FCA 611
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 32 Date of hearing: 23 November 2021 Counsel for the Applicant: The Applicant appeared in person Counsel for the First and Second Respondents: Mr CM Slater Solicitor for the First and Second Respondents: Jackson McDonald Counsel for the Third Respondent: The Third Respondent did not appear
Table of Corrections 3 February 2022 At [24] the word 'damages' inserted to correctly read: '… claim that sounds in damages that might be …'. ORDERS
WAD 338 of 2019 BETWEEN: CELESTINE OGBONNA
Applicant
AND: CTI LOGISTICS LIMITED (ACN 008 778 925)
First Respondent
MARK VANDERLIST
Second Respondent
TIM BARTON
Third Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
29 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Further compliance by the first and second respondents with r 2.06 of the Federal Court (Bankruptcy) Rules 2016 (Cth) be dispensed with.
2.The application to set aside the bankruptcy notice be dismissed.
3.The applicant do pay the first and second respondents' costs of the application to be assessed by a registrar on a lump sum basis if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
On 6 June 2019, a bankruptcy notice was issued notifying a claim by CTI Logistics Limited, Mr Mark Vanderlist and Mr Tim Barton (together, CTI Parties) against Mr Celestine Ogbonna. It relied upon failure by Mr Ogbonna to pay an amount of costs ordered to be paid by what was then the Federal Circuit Court.
Acting on his own behalf, Mr Ogbonna applied to set aside the bankruptcy notice. He did so within the prescribed period for such applications. His application relied upon his contention that he had a counterclaim, set‑off or cross‑demand being a claim…
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- Case
- [2021] FCA 1491
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the requirements of rule 2.06 of the Federal Court (Bankrupcy) Rules 2016 (Cth) should be set aside. This rule mandates that the applicant must provide a notice of grounds of opposition and a supporting affidavit to the respondents. In this instance, the respondents had submitted their responses in accordance with case management orders, rather than filing a formal notice of grounds of opposition and supporting affidavit. The court had to consider whether these submissions were sufficient to comply with the procedural requirements of the rules.
The court found that the respondents' submissions, while not strictly compliant with rule 2.06, were sufficient for the purposes of the case management and the court's ability to assess the merits of the application. The court emphasised the importance of following procedural rules to ensure fairness and efficiency in the court process. Given that the substantive claims of fraud, conspiracy, and judicial corruption were without merit, the court dismissed the application to set aside the bankruptcy notice. The court also ordered that the applicant pay the costs of the application to the first and second respondents, to be assessed on a lump sum basis if not agreed upon by the parties. This decision underscores the necessity of adhering to procedural requirements and the limited circumstances in which such requirements may be set aside.
Orders
Orders of the court
1. Further compliance by the first and second respondents with r 2.06 of the Federal Court (Bankruptcy) Rules 2016 (Cth) be dispensed with.
2. The application to set aside the bankruptcy notice be dismissed.
3. The applicant do pay the first and second respondents' costs of the application to be assessed by a registrar on a lump sum basis if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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