Paligorov v Cohen

[2006] FCA 1473

FEDERAL COURT OF AUSTRALIA

Paligorov v Cohen [2006] FCA 1473

BANKRUPTCY – appeal from sequestration order of Federal Magistrate – construction and effect of undertaking given by appellant in form of consent orders – whether appellant’s undertaking to not take proceedings to set aside bankruptcy notice covers opposition to creditor’s petition - whether “sufficient cause” exists under s 52(2)(b) of the Bankruptcy Act 1966 (Cth) to warrant dismissal of creditor’s petition – whether there exists reasonable doubt as to the identity of creditor.

Anderson Rice v Bride (1995) 61 FCR 529
James v Federal Commissioner for Taxation (1955) 93 CLR 631
McWilliam v Jackson (2000) 96 FCR 561

Bankruptcy Act 1966 (Cth), ss 40, 52, 307
Bankruptcy Act, s 307
Federal Court (Bankruptcy) Rules, O 77 r 11

BILL PALIGOROV v LEONARD COHEN & CO
NSD 653 OF 2006

TAMBERLIN J
10 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 653 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BILL PALIGOROV Appellant
AND:	LEONARD COHEN & CO Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	10 NOVEMBER 20062006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with 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	NSD 653 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	BILL PALIGOROV Appellant
AND:	LEONARD COHEN & CO Respondent

JUDGE:	TAMBERLIN J
DATE:	10 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR DECISION

1. This appeal is from a judgment of Federal Magistrate Raphael of 8 March 2005 making a sequestration order against the appellant. There are four issues outlined in the Amended Notice of Appeal. The first two concern the construction and effect of an undertaking given by consent and an order made by his Honour on 10 August 2005. The third issue is whether his Honour erred in law in failing to dismiss the creditor’s petition on the basis that there was sufficient cause for so doing under s 52(2)(b) of the Bankruptcy Act 1966 (Cth) (“the Act”). Fourthly, the issue is whether the bankruptcy notice is a nullity because there was reasonable doubt as to the identity of the creditor.

   OVERVIEW

2. This appeal arises in the context of a long complex history of nationwide litigation concerning recovery of solicitors’ fees found to be due and owing to the respondent firm, Leonard Cohen & Co, based on costs taxed in the Western Australian District Court in an amount of $7,771.55.  The bankruptcy notice was issued by Leonard Cohen & Co on 13 January 2005 in relation to the above judgment debt.  The judgment debt was based on a judgment in the District Court of Western Australia in Matter No. 2520 of 2003.

3. On 30 June 2005, Registrar Tesoriero dismissed the appellant’s application to set aside the bankruptcy notice.  An application was then made to review that decision.…