Quinteros v Nash

[2002] FMCA 228

FEDERAL MAGISTRATES COURT OF AUSTRALIA

QUINTEROS v NASH & ORS [2002] FMCA 228

BANKRUPTCY – Bankruptcy notice – whether a final judgment or order was in force at the time the bankruptcy notice was served – service otherwise than in person – when service of the bankruptcy notice was effected.

Bankruptcy Act 1966 (Cth), ss.40, 61

Bankruptcy Regulations

Federal Court Rules
Federal Magistrates Court Rules 2001 (Cth)

Horman v Distribution Group Limited, trading as Repco Auto Parts [2002] FMCA 219
Jiminez v Welcome Homes Real Estate [2002] FCA 92
Re Di Giacomo; ex parte Boral Steel (1983) 68 FLR 106
Schekeloff; ex parte Schekeloff (1989) 22 FCR 407
Walsh v Deputy Commissioner of Taxation (1984) 156 CLR 337

Applicant: VICTOR QUINTEROS

First Respondent:

Second Respondent:
Third Respondent:

GREG NASH

JOHN TOMKO
MICHAEL O’NEILL

File No: SZ798 of 2002

Delivered on: 23 September 2002

Delivered at: Sydney

Hearing Date: 23 September 2002

Judgment of: Driver FM

REPRESENTATION

Solicitors for the Applicant: Mr  Capsanis
J P Capsanis & Co

Solicitors for the Respondent: Mr Ferguson
Nash O’Neill Tomko

ORDERS

1. The application is dismissed.

2. The applicant is to pay the respondents’ costs of and incidental to the application, including any reserved costs, to be taxed and paid in accordance with the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ798 of 2002

VICTOR QUINTEROS

Applicant

And

GREG NASH

First Respondent

JOHN TOMKO

Second Respondent

MICHAEL O’NEILL

Third Respondent

REASONS FOR JUDGMENT

1. This ex tempore judgment relates to an application to set aside a bankruptcy notice alleged by the respondent creditor to have been served on the applicant debtor on 12 August 2002. The application by Mr Quinteros is supported by an affidavit made by him on 5 September 2002, and in addition he gave oral evidence today. The thrust of the application is that the bankruptcy notice should be set aside because at the time of service of the bankruptcy notice the creditor did not have a final judgment or order necessary to gain an act of bankruptcy for the purposes of s.40(1)(g) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”).

2. It is said that there was no final judgment or order at the time of service of the bankruptcy notice because at that time the debtor had obtained an instalment order for payment of the debt, the subject of the bankruptcy notice, by instalments. The facts are that the debtor sought an instalment order from the Local Court on 9 August 2002 and that order was granted on 13 August 2002. It follows that if the bankruptcy notice was served prior to that date the creditor would be able, upon the expiry of the bankruptcy notice, to take the benefit of s.40(1)(g). It would also follow that the date of the act of bankruptcy would be 21 days after the date of service of the bankruptcy notice, with the additional result that this present application filed on 5 September 2002 would have been filed out of time.

3. It…