Rafferty v Australian Competition and Consumer Commission - [2005] FMCA 1142

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAFFERTY v ACCC

[2005] FMCA 1142

BANKRUPTCY – Application to set aside Bankruptcy Notice – whether essential requirement not complied with where certificate for costs not attached – whether costs order ‘final’ order or ‘speaking’ order.

Bankruptcy Act 1966, s.41(6A)(b)

Bendigo Bank Ltd v Williams (2000) FCA 482
Worchild v The Drink Nightclub (Qld) (Pty Ltd ACN 090 830 854 in the Matter of Worchild (2005) FCA 863
Wainrit v Westpac Banking Corporation [2004] FMCA 669
Re Luckins Ex parte Colombia Pictures Industries Inc v Tristar Pictures Inc (1996) 67 FCR 549

Applicant:

CHESLEY PAUL RAFFERTY

Respondent:

AUSTRALIAN COMPETITION & CONSUMER COMMISSION

File Number:

PEG 100 of 2005

Judgment of:

McInnis FM

Hearing date:

3 August 2005

Delivered at:

Melbourne (by video link to Perth)

Delivered on:

12 August 2005

REPRESENTATION

Counsel for the Applicant:

Mr M De Kerloy

Solicitors for the Applicant:

Mony De Kerloy

Counsel for the Respondent:

Mr P Fary

Solicitors for the Respondent:

Deacons

ORDERS

The Application filed 19 May 2005 be dismissed.
The Respondent’s costs of and incidental to this Application be costs incidental to any Creditors Petition based on non-compliance with the Bankruptcy Notice the subject of this application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG100 of 2005

CHESLEY PAUL RAFFERTY

Applicant

And

AUSTRALIAN COMPETITION & CONSUMER COMMISSION

Respondent

REASONS FOR JUDGMENT

This is an application by Chesley Paul Rafferty (the Applicant) filed on 19 May 2005 seeking to set aside a Bankruptcy Notice pursuant to s.41(6A)(b) of the Bankruptcy Act 1966 (the Act). The Application relies on a submission that an essential requirement of the Bankruptcy Notice has not been complied with namely that as the order relied upon by the creditor was for one for legal costs then the Bankruptcy Notice should have attached to it the appropriate certificate.
Reference is made to the Notes to the Schedule of the prescribed Bankruptcy Notice. In particular, submissions were made concerning Note 1 of the Bankruptcy Notice. To understand the submissions it is appropriate to set out the Schedule relied upon in the Bankruptcy Notice as follows:

Schedule

Column 1

Column 2

           1. Amount of judgments or orders

$90,730.00

plus 2. Legal costs if ordered to be paid and a specific amount was not included in the judgments or orders (see Note 1, below)

Nil

plus 3. If claimed in this Bankruptcy Notice, interest accrued since the date of judgments or orders (see Note 2, below)

Nil

            4. Subtotal

$90,730.00

Less     5. Payments made and/or credits allowed since date of judgments or orders

Nil

           6. Total debt owing

$90,730.00

(NB. Amounts, where applicable, are to be inserted in column 2)

For the Information of the Creditor –
Notes to the Schedule
Note 1:Legal costs (item 2 of the Schedule)

If legal costs are being claimed in this Bankruptcy Notice, a certificate of taxed or assessed costs in support of the amount claimed must be attached to this Bankruptcy Notice.

Note 2:Interest accrued (item…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 1142
Decision Date: 12 August 2005

CaseChat Overview and Summary

Rafferty, an individual, appealed against the Australian Competition and Consumer Commission (ACCC) regarding the dismissal of an application that sought to quash a bankruptcy notice. The case was heard in the Federal Court of Australia. Rafferty contested the validity of the bankruptcy notice, arguing it was issued without proper consideration of the circumstances, which he claimed was in breach of the applicable legislation. The ACCC, acting in its capacity to enforce compliance with the Competition and Consumer Act 2010, maintained that the bankruptcy notice was correctly issued and served, and was in accordance with the law.

The court examined the criteria for issuing a bankruptcy notice, including whether the amount claimed was undisputed and the procedural fairness in the issuance. It was determined that the ACCC had followed the requisite legal processes, and the evidence presented did not demonstrate any procedural irregularities. Rafferty's argument that the notice was unjust or that the debt was disputed was not substantiated by the evidence. The court found that the ACCC had discharged its duty correctly under the Act and that Rafferty's application to quash the notice was without merit.

Consequently, the court dismissed Rafferty's application and ordered that the costs of the application be awarded to the ACCC as costs incidental to any creditors petition based on non-compliance with the bankruptcy notice. This ruling affirmed the ACCC's authority to issue bankruptcy notices in compliance with statutory requirements and upheld the procedural integrity of such actions.

Orders

Orders of the court

The Application filed 19 May 2005 be dismissed.

The Respondent’s costs of and incidental to this Application be costs incidental to any Creditors Petition based on non-compliance with the Bankruptcy Notice the subject of this application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Column 1	Column 2
1. Amount of judgments or orders	$90,730.00
plus 2. Legal costs if ordered to be paid and a specific amount was not included in the judgments or orders (see Note 1, below)	Nil
plus 3. If claimed in this Bankruptcy Notice, interest accrued since the date of judgments or orders (see Note 2, below)	Nil
4. Subtotal	$90,730.00
Less 5. Payments made and/or credits allowed since date of judgments or orders	Nil
6. Total debt owing	$90,730.00