Philpott v Foux

[2001] FCA 1380

FEDERAL COURT OF AUSTRALIA

Philpott v Foux [2001] FCA 1380

ALBERT ANDREW PHILPOTT v MELVYN ROY FOUX
N 7412 of  2001

SACKVILLE J
SYDNEY
25 SEPTEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N7412 OF 2001

BETWEEN:	ALBERT ANDREW PHILPOTT APPLICANT
AND:	MELVYN ROY FOUX RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	25 SEPTEMBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for review of the Registrar's decision be adjourned to a date to be fixed.

2.The debtor pay the creditor's costs both before the Registrar and before this Court today.

3.The proceedings be transferred to the Federal Magistrates Court.

4.Subject to any further order made by the Federal Magistrates Court, the debtor file and serve within 21 days any additional affidavits upon which he intends to rely.

5.Subject to any further order made by the Federal Magistrates Court, the debtor file and serve within 21 days written submissions in support of the application to set aside the bankruptcy notice.

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	N7412 OF 2001

BETWEEN:	ALBERT ANDREW PHILPOTT APPLICANT
AND:	MELVYN ROY FOUX RESPONDENT

JUDGE:	SACKVILLE J
DATE:	25 SEPTEMBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter has come before me today from the Registrar's bankruptcy list.  The proceedings before the Court take the form of an application by the debtor to set aside a bankruptcy notice.  The only ground specified in the application is that the bankruptcy notice was not properly served.

2. Mr Menadue, who appears for the creditor, has sought to explain to me the nature of the proceedings that took place this morning before the Registrar. While there seems to be some uncertainty about precisely what transpired, I understand the Registrar to have dismissed the debtor's application to set aside the bankruptcy notice. The Registrar, so far as I can gather from what Mr Menadue has told me, appears to have proceeded on the basis that although the bankruptcy notice had not been served in accordance with reg 16.01(1)(c) of the Bankruptcy Regulations 1996 (Cth), she was nonetheless prepared to make an order pursuant to s 306 of the Bankruptcy Act 1966 (Cth) excusing the failure to comply specifically with reg 16.01(1)(c). Whether that is a precisely accurate description of what transpired before the Registrar I cannot be sure, but that is the position as I understand it.

3. The matter appears therefore to have been referred to me pursuant to O 77 r 8(3) of the Federal Court Rules (“FCR”) which provides for a decision of a Registrar to be reviewed by a Court or a Judge.

4. When the matter came before me, the debtor, who appeared without legal representation, indicated that he wished to rely on the alleged failure of the creditor properly to serve the bankruptcy notice to support his claim that the notice should be set aside.  In addition, the debtor wishes to contend that he is not indebted to the creditor.  The debtor, as I understand him, accepts that a judgement by default has been obtained against him and two others in the Local Court of New South Wales.  He says, however, that if any moneys were due to the creditor they were due from a company of which the debtor was the director and not from the debtor personally.

5. The debtor seeks an adjournment of the hearing of his application to review the decision of the Registrar in order to obtain legal representation.

6. I am of the view that the debtor ought to be afforded an opportunity to obtain legal representation.  As I have explained to the debtor, it would have been prudent for him to have sought and obtained legal advice prior to the hearing of his application.  After all, he is the party seeking to set aside the bankruptcy notice.  Nonetheless it does seem to me that there may be arguable issues that arise in relation to this bankruptcy notice.  In those circumstances the debtor should have the opportunity to seek legal advice.  The debtor has assured me that that is the course he intends to adopt.

7. I have also explained to the debtor that an adjournment will come at a price.  That price is an order that the debtor pay the creditor’s costs thrown away in the course of the proceedings today before the Registrar and before this Court. 

8. I further think it appropriate that this matter be transferred to the Federal Magistrates Court pursuant to s 32AB of the Federal Court of Australia Act 1976 (Cth). I have taken into account the matters referred to in subsection s 32AB(6). It seems to me that the hearing of this matter is likely to be dealt with more expeditiously and cheaply in the Federal Magistrates Court than in this Court.

9. I direct the debtor to file and serve any further affidavits in support of his application within 21 days.  I further direct the debtor to file and serve written submissions in support of the application to set aside the bankruptcy notice within 21 days from today's date.  Of course, it will be a matter for the Federal Magistrates Court as to whether any further directions are to be made in preparation for the hearing of the application.

10. The orders I make therefore are the following:

    1.The application for review of the Registrar's decision be adjourned to a date to be fixed.

    2.The debtor pay the creditor's costs both before the Registrar and before this Court today.

    3.The proceedings be transferred to the Federal Magistrates Court.

    4.Subject to any further order made by the Federal Magistrates Court, the debtor file and serve within 21 days any additional affidavits upon which he intends to rely.

    5.Subject to any further order made by the Federal Magistrates Court, the debtor file and serve within 21 days written submissions in support of the application to set aside the bankruptcy notice.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             28 September 2001

The Applicant was unrepresented.

Counsel for the Respondent:	Mr  P Menadue
Solicitor for the Respondent:	Rodney Shields & Co
Date of Hearing:	25 September 2001
Date of Judgment:	25 September 2001