Preston v Porter

[2015] FCCA 1243

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRESTON v PORTER [2015] FCCA 1243

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – application dismissed.

Legislation:  

Bankruptcy Act 1966 ss.27, 129

Applicant: JOHN ROBERT PRESTON – A BANKRUPT (ADMINISTRATION NUMBER 4939/2013/8)

Respondent: JASON L PORTER – A TRUSTEE IN BANKRUPTCY

File Number: SYG 314 of 2015

Judgment of: Judge Street

Hearing date: 8 May 2015

Date of Last Submission: 8 May 2015

Delivered at: Sydney

Delivered on: 8 May 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Ms S. Nash
O'Neill Partners Commercial Lawyers

ORDERS

1. The application of the bankrupt be dismissed.

2. The applicant pay the first and second respondent $4243.36 within 90 days.

3. The costs of the trustee be paid out of the bankrupt estate.

4. Paul Gerard Weston be joined to the proceedings

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 314 of 2015

JOHN ROBERT PRESTON – A BANKRUPT (ADMINISTRATION NUMBER 4939/2013/8

Applicant

And

JASON L PORTER – A TRUSTEE IN BANKRUPTCY

Respondent

REASONS FOR JUDGMENT

1. This is a matter within the Court’s jurisdiction under s.27 of the Bankruptcy Act 1966. The bankrupt moved to set aside a notice served by the trustee under s.129 on the basis that the amount owed was less than the amount identified in the notice of demand. The notice of demand sought the amount of $13,504 and the amount that the bankrupt accepts as being due and owing since October 2013 is $4243.36.

2. The notice of demand was not, in fact, dated by the trustee, although it is clear it was served under cover of a letter dated 6 February 2015 that identified the notice of demand amount claimed by the trustee.  The trustee withdrew the demand on 8 April 2015 and issued a fresh demand on 8 April for the admitted sum of $4243.36.   In light of the admissions made by the bankrupt to this Court as to the benefit received, being property, that was clearly vested in the trustee that sum has been due and payable to the trustee since October 2013. There is no need to determine the validity of the earlier notice as that issue is now academic particularly given the admission means there is no dispute as to the existence of an amount due and payable. The order sought in the application is of no utility and the application should be dismissed. Given the admission made as to the amount due the appropriate course under the cross application is to order payment of the admitted amount.

3. I am satisfied that it is appropriate to make an immediate order that the bankrupt pay the respondent the sum of $4243.36.  The trustee has consented to the bankrupt’s request for time to pay, being 90 days.  In these circumstances, the application is dismissed.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  18 May 2015