Re Nath, Vijendra Ex Parte Nath, Vijendra - [1996] FCA 868

CATCHWORDS

BANKRUPTCY - bankruptcy notice - personal service - whether counterclaim, set-off or cross-demand within s 40(1)(g) of the Bankruptcy Act 1966 (Cth) - whether sufficient evidence - whether claim made bona fide - whether could not have been set up - stay of execution of judgment after service of bankruptcy notice.

Bankruptcy Act 1966 (Cth) s 31A(1), 31A(6), 31A(7), 40(1)(g), 309(2)
Bankruptcy Rules r 15

Ginnane v Diners Club Ltd (1993) 42 FCR 90
Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374
Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347
Re Hudson; Ex parte G E Crane & Sons Ltd (1990) 25 FCR 318
Re Rosenberg; Ex parte Westpac Banking Corporation, (unreported, 21 July 1993, Sweeney J )
Baldry v Jackson [1976] 1 NSWLR 19
Re O’Sullivan; Ex parte O’Sullivan (1995) 57 FCR 145
Ebert v Union Trustee Co of Australia Ltd (1960) 104 CLR 346
Re Stokvis [1934] 7 ABC 53
Re Jocumsen (1929) 1 ABC 82
Re Johnson; Ex parte Johnson v Tonkin (1994) 53 FCR 70
Re Frasersmith; Ex parte J Blackwood & Son Ltd (1992) 36 FCR 144
Re Schekeloff; Ex parte Schekeloff v Hopkins Group Pty Ltd (1989) 22 FCR 407

RE VIJENDRA NATH; EX PARTE VIJENDRA NATH and METWAY BANK LIMITED
No QN 472 of 1996

Cooper J
Brisbane
2 October 1996

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND

No QN 472 of 1996

RE: VIJENDRA NATH

EX PARTE: VIJENDRA NATH

Judgment Debtor

AND: METWAY BANK LIMITED
ACN 010 831 722

Judgment Creditor

JUDGE MAKING ORDER:          Cooper J
WHERE MADE:  Brisbane
DATE OF ORDER:  2 October 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application filed 24 June 1996 be dismissed.
The judgment debtor pay the judgment creditor’s costs of and incidental to the application, including reserved 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
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION

No QN 472 of 1996

RE: VIJENDRA NATH

EX PARTE: VIJENDRA NATH

Judgment Debtor

AND: METWAY BANK LIMITED
ACN 010 831 722

Judgment Creditor

CORAM:  Cooper J
PLACE:  Brisbane
DATE:  2 October 1996

REASONS FOR JUDGMENT

Introduction
By application filed on 24 June 1996, Vijendra Nath seeks review of an order made by the Registrar in Bankruptcy for the Bankruptcy District of the State of Queensland (“the Registrar”) dismissing Mr Nath’s application to have bankruptcy notice number 472 of 1996 set aside. The ground relied upon by Mr Nath was that the bankruptcy notice was not personally served upon him in accordance with the provisions of the Bankruptcy Act 1966 (Cth) (“the Act”) and the Bankruptcy Rules in force under the Act (“the Rules”). Mr Nath’s application, insofar as it relates to service of the bankruptcy notice, is an application under s 31A(6) of the Act for review of the exercise by…

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: [1996] FCA 868
Decision Date: 2 Oct 1996

CaseChat Overview and Summary

The case of Re Nath, Vijendra Ex Parte Nath, Vijendra involves a bankruptcy notice served on Vijendra Nath by Metway Bank Limited. Nath contests the validity of the service of the notice and seeks to set it aside. The dispute was heard in the Federal Court of Australia by Cooper J. The court was required to determine whether the bankruptcy notice was validly served on Nath and if Nath had a valid counterclaim, set-off or cross-demand within the meaning of s 40(1)(g) of the Bankruptcy Act 1966 (Cth).

The court found that the bankruptcy notice was validly served on Nath despite his objections to the manner of service. The court accepted the evidence of Nina Bognuda, who served the notice on Nath, over Nath's evidence. The court ruled that the notice was delivered personally to Nath within the meaning of the Bankruptcy Rules. As for the counterclaim, the court found that Nath failed to provide sufficient evidence to support his claim, and it was not made bona fide. The court also concluded that Nath's claim could have been set up in the original action in which the judgment was obtained.

The court dismissed Nath's application to set aside the bankruptcy notice and ordered that Nath pay the costs of the application.

Orders