Re Bradley, John Ex Parte Bradley, John v Carter & Spence Nth Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA         )
GENERAL DIVISION  )
   No. QN 1931 of 1995
BANKRUPTCY DISTRICT OF THE          )
STATE OF QUEENSLAND  )

RE:JOHN BRADLEY

EX PARTE:JOHN BRADLEY
Applicant

AND: CARTER AND SPENCE NTH PTY LTD
Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER: Spender J

DATE OF ORDER: 13 May 1996

WHERE MADE: Brisbane

THE COURT ORDERS THAT:

(1)the application filed on 18 April 1996 be dismissed;

(2)the costs of the respondent of and incidental to the application, including reserved costs, be paid by Mr John Bradley, the applicant, those costs to be taxed if not agreed.

NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA         )
GENERAL DIVISION  )
   No. QN 1931 of 1995
BANKRUPTCY DISTRICT OF THE          )
STATE OF QUEENSLAND  )

RE:JOHN BRADLEY

EX PARTE:JOHN BRADLEY
Applicant

AND:CARTER AND SPENCE NTH QLD PTY LTD
Respondent

CORAM: Spender J
DATE: 13 May 1996
PLACE: Brisbane

REASONS FOR JUDGMENT

I have before me an application on behalf of John Bradley of 12 Bondi Road, Bondi Junction, seeking an order, inter alia, that bankruptcy notice No 1931 of 1995 be set aside, or, in the alternative, that the time for compliance with the bankruptcy notice be extended until the hearing of the applicant's appeal against the judgment obtained in the Magistrates Court at Townsville. He also sought orders that the hearing of the application be transferred to the Sydney Registry and the respondent pay the applicant his taxed costs of and incidental to the application. The application was filed by Messrs Nehmer Davenport Dean McKee, solicitors, of Hermit Park in Townsville.

When the matter was called on today, there was no appearance by Mr Bradley, but an unsigned fax addressed to the
solicitors for the creditors which was tendered, and I will mark that "Exhibit 1" in these proceedings. The body of the facsimile transmission bears the address "12 Bondi Road, Bondi Junction", which is the address of Mr Bradley in his application filed on 18 April 1996. It is dated 12 May and is addressed to Mr Michael Forde of the solicitors for the creditor. The body of the facsimile is in the following terms:

"Last Wednesday, 8th May 1996, the magistrate at Townsville Magistrates Court did not allow me to present evidence to show my innocence of the debts attributed to me by your client, Carter & Spence Pty Ltd. As a result, the bankruptcy proceedings you have instigated on their behalf cannot be legally stopped. Even though I have never received any benefit from any product or service from Carter & Spence & do not now admit any liability to your client, because of the legal circumstance I find myself in, I have no option but to pay your client the monies they are claiming from me.

Just in case the situation did eventuate, a property owned by a relative who owes me money has been sold & is expected to be settled on the 3rd June 1996. The amount owed to your client will be paid in full out of that settlement money. My relative's name..."

etcetera, providing details. The letter concludes:

"I hope you find these arrangements satisfactory. Would you confirm that this will be acceptable to yourself & your client by contacting me by phone/ fax on..."

[and it then sets out a number]

"Yours sincerely
Dr John T. Bradley"

In those circumstances, it seems plain that I should dismiss the application filed on 18 April 1996, and order that
the costs of the respondent of and incidental to that application, including reserved costs, be paid by Mr John Bradley, the applicant, those costs to be taxed if not agreed.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate

Date: 13 May 1996

No appearance for the applicant.

Solicitors for the respondent: F M Forde & Co

Date of Hearing : 13 May 1996

John Bradley, an applicant, sought an order in the Federal Court of Australia to set aside a bankruptcy notice or, alternatively, to extend the time for compliance with the bankruptcy notice until his appeal against a judgment obtained in the Magistrates Court at Townsville was heard. The respondent, Carter & Spence Nth Pty Ltd, contested the application. The matter was heard in the General Division of the Federal Court of Australia in Brisbane.

The primary legal issue was whether the bankruptcy notice should be set aside or if the time for compliance should be extended. This issue arose from the applicant's inability to present evidence in the Magistrates Court, which led to the bankruptcy proceedings. The applicant argued that he had no option but to pay the creditor in full from a property settlement expected on June 3, 1996. The court had to determine if these circumstances warranted setting aside the bankruptcy notice or extending the compliance period.

Justice Spender dismissed the application filed on April 18, 1996. The judge noted that the applicant did not appear for the hearing, and an unsigned fax from the applicant to the creditor's solicitors was tendered. The fax indicated that the applicant had no option but to pay the creditor in full from a property settlement. Given these circumstances, the court found no grounds to set aside the bankruptcy notice or extend the compliance period. Consequently, the court ordered that the costs of the respondent, including reserved costs, be paid by the applicant and be taxed if not agreed.

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