Re Gardiner, B.G. & anor Ex parte The Debtors - [1992] FCA 401

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JUDGMENT NO. - -

IN THE FEDERAL COURT OF AUSTUIA )

BANKRUPTCY DISTRICT OF THE 1 NO B 3660 of 1991
STATE OF NEW SOUTH WALES 1

Re : B E R N A R D G E O R G E

GARDINER & SUSANNE
LEONIE GARDINER
Applicants

Ex Parte:

THE DEBTORS Respondents

EX TEMPORE JUDGMENT

SYDNEY 25 FEBRUARY 1992

This piece of litigation between members of the same family involves the sum of $7574.10. It is not the first time the matter has been before a Court. It is a shameful waste of public money and the Court's time.

On 4 June 1986 judgment was given by the Supreme Court of New South Wales in its Equity Division (the Equity Court) in which there was included an order that the present applicants, who are the debtors in a bankruptcy notice, pay the costs of the present respondents, the judgment creditors. The judgment of the Equity Court was entered on 24 June 1986 and pursuant to the order for costs, a certificate of taxation was issued on

been taxed six months earlier, and seeking a new hearing of the taxation of costs. By consent, on 22 May 1989 a Deputy
Registrar in Equity ordered that the time for objecting to the taxation of those costs be extended up to and including 29 May 1989. The Deputy Registrar also ordered by consent (the consent orders) that interest should run on what was described as "all disputed items eventually found in favour of the plaintiffs" as from 29 November 1988, and that the applicant debtors pay the respondent creditors' costs of the motion. By the term "all disputed items eventually found in favour of the plaintiff S", the consent orders could only have meant the costs allowed to the creditors in the Equity Court proceedings.
In due course, on 31 October 1990, all of seventeen months after the consent orders, the re-taxing of the bill of costs of the Equity Court proceedings took place. Costs were certified at $21,125.97, or just over $330 less than had been taxed in November 1988. By how much that $330 was less than the costs incurred in the re-taxing exercise can only be a matter for horrified speculation. On the same day, 31 October

were certified in the sum of $518.00. The consent orders were 1990, the costs of the motion settled by the consent orders
also entered on that day.
On 20 December 1990, the judgment creditors issued a bankruptcy notice for these costs against the present applicants as debtors. This notice was set aside by Justice Wilcox on 20 March 1991 with an order that the creditors pay the debtors' costs.
On 17 May 1991 the creditors issued another bankruptcy notice, No B 1667 of 1991. It sought $21,125.97, being the amount certified by the taxing officer on 31 October 1990, together with two amounts of interest. The first of these, $1077.71, was in respect of a period of 98…

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.

Continue reading Re Gardiner, B.G. & anor Ex parte The Debtors

Details

AGLC: Re Gardiner, B.G. & anor Ex parte The Debtors [1992] FCA 401
Case: [1992] FCA 401
Decision Date: 25 Feb 1992

CaseChat Overview and Summary

This case involves a dispute between members of the same family over the sum of $7574.10. The applicants, who are also the debtors in a bankruptcy notice, seek to set aside a bankruptcy notice issued by the respondents, the judgment creditors. The case has a lengthy history, with previous litigation in the Supreme Court of New South Wales and multiple bankruptcy notices being issued and set aside. The applicants argue that the present bankruptcy notice is bad and must be set aside for several reasons. Firstly, they argue that the payment of an earlier bankruptcy notice No B 1667 of 1991 denies the creditors the right to issue the present bankruptcy notice. Secondly, they argue that the consent orders were interlocutory and not final orders as required by the Bankruptcy Act 1966. Thirdly, they argue that the bankruptcy notice contains incorrect calculations of the amounts due.

The creditors reply that a waiver cannot apply where the orders on which the amounts in dispute are based are different. They argue that the amount presently claimed is based upon the consent orders of 22 May 1989 whereas the earlier bankruptcy notice was based upon the order of the Equity Court made on 4 June 1986. They further argue that the entry of the consent orders on 31 October 1990 in effect provides the missing link that might otherwise exist in relation to the certificate of taxation.

The court finds that the bankruptcy notice is bad and must be set aside. The court finds that the debtors' claims that the bankruptcy notice is bad because of the wrong calculation of the amounts due are valid. The court finds that the present bankruptcy notice is significantly misconceived and that it is not necessary to pronounce on the necessity of the consent orders. The court orders that the bankruptcy notice be paid by the creditors.

The applicants apply for indemnity costs. The court finds that there is no warrant for an order for indemnity costs, but orders that the debtors' costs of the application to set aside the bankruptcy notice be paid by the creditors. The court finds no conflict with the earlier decision of Justice Wilcox in relation to the earlier bankruptcy notice.

Orders