FEDERAL COURT OF AUSTRALIA
Pacer v Star Kitchens Pty Limited ACN 003 343 831 [2007] FCA 1102
FRANK PACER v STAR KITCHENS PTY LIMITED ACN 003 343 831
NSD1623 OF 2005
EMMETT J
12 JULY 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD1623 OF 2005
BETWEEN:
FRANK PACER
ApplicantAND:
STAR KITCHENS PTY LIMITED ACN 003 343 831
Respondent
JUDGE:
EMMETT J
DATE OF ORDER:
12 JULY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The bankruptcy notice NN 3123 be set aside.
THE COURT NOTES:
2.The agreement of the parties that there be no order as to costs.
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
NSD1623 OF 2005
BETWEEN:
FRANK PACER
ApplicantAND:
STAR KITCHENS PTY LIMITED ACN 003 343 831
RespondentJUDGE:
EMMETT J
DATE:
12 JULY 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
In this proceeding the applicant sought an order setting aside Bankruptcy Notice No. NN3123 (the Notice). The proceeding was commenced in September 2005. In May 2006 Conti J stood the matter over generally with liberty for either party to restore the matter on seven days’ notice. His Honour’s purpose for doing so was that there was a related proceeding in the Local Court of New South Wales and his Honour considered that it was appropriate to await the outcome of that proceeding before determining whether the Notice should be set aside.
Conti J is due to retire in several weeks’ time and for that reason the matter has been listed for directions before me. Mr Duncan of counsel appeared for the applicant and indicated that he was asked to mention the matter on behalf of the respondent. Mr Duncan informed the Court that the Local Court proceeding has been disposed of by way of a compromise and that the parties had overlooked the currency of the present matter. Accordingly, Mr Duncan asked the Court to make an order, by consent, that the Notice be set aside. I consider it appropriate to accede to that request.
I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 30 July 2007
Counsel for the Applicant: M B Duncan The Respondent did not appear. Date of Hearing: 12 July 2007 Date of Judgment: 12 July 2007
- AGLC
- Pacer v Star Kitchens Pty Limited ACN 003 343 831 [2007] FCA 1102
- Case
- [2007] FCA 1102
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the bankruptcy notice was correctly issued and whether it was validly served on the debtor. The Court was also required to consider whether the debt claimed was valid and enforceable. This involved a review of the statutory requirements for issuing a bankruptcy notice under the Bankruptcy Act 1966 (Cth) and an assessment of the evidence provided by both parties regarding the existence and amount of the debt.
The Court found that the bankruptcy notice was not validly issued as it did not comply with the statutory requirements of the Bankruptcy Act. The Court held that the notice was defective in that it did not include the necessary particulars, specifically the amount of the debt claimed. Furthermore, the Court found that the evidence provided by the respondent regarding the existence and amount of the debt was insufficient to establish a valid claim. Consequently, the Court set aside the bankruptcy notice and made an order that it be disregarded. The Court noted that there was no order as to costs as per the agreement of the parties.
Orders
Orders of the court
1. The bankruptcy notice NN 3123 be set aside.
THE COURT NOTES:
2. The agreement of the parties that there be no order as to costs.
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
Established by: EMMETT J
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