PRELEA v Boral Resources (NSW)Pty Ltd
[2003] FMCA 499
•4 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRELEA v BORAL RESOURCES (NSW)PTY LTD | [2003] FMCA 499 |
| BANKRUPTCY – Application to review decision to dismiss application to set aside bankruptcy notice – where application based upon claim that an application to set aside judgment had been made – where no such application had been made when proceedings commenced – where act of bankruptcy had occurred before hearing – whether original application was void – whether review can take place. |
| Applicant: | ANDREW PRELEA |
| Respondent: | BORAL RESOURCES (NSW) PTY LTD ACN 000 756 507 |
| File No: | SZ 1824 of 2003 |
| Delivered on: | 4 November 2003 |
| Delivered at: | Sydney |
| Hearing date: | 4 November 2003 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr Hicks |
| Solicitors for the Respondent: | Mr A Argyropoulos |
ORDERS
Application dismissed.
Applicant pay the respondent's costs to be taxed if not agreed in accordance with the Federal Court Act and Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 1824 of 2003
| ANDREW PRELEA |
Applicant
And
| BORAL RESOURCES (NSW) PTY LIMITED ACN 000 756 507 |
Respondent
REASONS FOR JUDGMENT
The applicant judgment debtor comes before me today seeking a review of an order dismissing an application to set aside a bankruptcy notice that was made by Registrar Tesoriero of this Court on 16 September 2003. The application was made by way of a document filed on 5 September 2003. It made a claim for interlocutory relief that the time for compliance be extended up to and including the date of the first directions hearing. But in fact the matter was set down for hearing on 16 September 2003. The details of the claim in the application were that it was made on the basis that proceedings to set aside the original judgment had been instituted.
I am advised that when the matter came before Registrar Tesoriero on 16 September 2003 there was no appearance for the applicant. The solicitor for the respondent did appear. He informed Registrar Tesoriero that as at that date no application to set aside the judgment debtor had been made. In fact, an application to set aside the judgment debt had been made on 16 September. In those circumstances the proceedings to set aside the original judgment had not been instituted as at 5 September when the application was issued.
The bankruptcy notice had been served upon the debtor on 16 August 2003. Assuming that the effect of the application was to extend the date for compliance until 16 September, the time for compliance would expire on 7 October. As at 7 October the default judgment remained in existence. On 10 October it was set aside. On 16 October 2003 the applicant debtor applied for review of the decision of Registrar Tesoriero and that matter was heard before me today. The applicant says that as of today when I am hearing the application to set aside the bankruptcy notice de novo there is no sub stratum for the notice, namely, the judgment, and in that he must be correct. However, it seems to me, that an act of bankruptcy has already occurred. It occurred at one minute past midnight on 8 October when the applicant failed to comply with the original notice. At that time there was no application for a review.
But, more importantly, in relation to the application for review the original application itself seems to me to be void. The reason I say that is because at the date it was issued no application to set aside the judgment had been instituted and there must be some doubt as to whether it was instituted before the application was heard.
There has been passed to me certain correspondence from the solicitors for the judgment creditor to the solicitors of the judgment debtor. The solicitors for the judgment creditor have made it quite clear that whilst an act of bankruptcy has been committed by the judgment debtor they have no intention of taking any further action in relation to the bankruptcy proceedings whilst the action upon which the original default judgment was based is proceeding. This a proper approach to take in cases of this nature.
I do not believe that my powers of review run so far as to validate an invalid application. I sympathise with Mr Ekes. I accept that having committed an act of bankruptcy is not something that his client would wish to have known or be required to reveal, but the fact is his client has been less than timely in dealing with his affairs so far as it relates to the judgment creditor. I dismiss the application. I order that the applicant pay the respondent's costs to be taxed if not agreed in accordance with the Federal Court Act and Rules.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
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