Ogbonna v CTI Logistics Limited

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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

Ogbonna v CTI Logistics Ltd [2021] WASCA 25

Ogbonna v CTI Logistics Pty Ltd [2021] HCASL 122

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:

  1. 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.

  2. 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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Details
Case
[2021] FCA 1491
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Ogbonna v CTI Logistics Limited involves an application by the applicant to set aside a bankruptcy notice. The applicant, Ogbonna, was the subject of the bankruptcy notice issued by CTI Logistics Limited, the first respondent, with the Commonwealth of Australia, as the second respondent, being the trustee in bankruptcy. The application was premised on various claims, initially involving a counterclaim for defamation, which was dismissed, and subsequent unsuccessful appeals. The applicant now sought to rely on allegations of fraud, conspiracy, and judicial corruption in relation to the rejection of the defamation claim as grounds for setting aside the bankruptcy notice.

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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