Re Thompson, Stanley William Ex Parte Thompson, Stanley William - [1995] FCA 1148

CATCHWORDS

BANKRUPTCY NOTICE - notice founded on costs order of the Queensland Court of Appeal - principal proceedings still on foot - debtor a litigant in person - application for a "stay" of the costs order - absence of jurisdiction to stay an order of the Court of Appeal - whether affidavit in support of the application establishes a cross demand - whether pending application for special leave to appeal from the Court of Appeal can constitute a cross demand.

COSTS - bankruptcy notice in respect of a costs order - whether the costs order in the present case creates a joint right or a joint and several right.

JOINT CREDITORS - application for a bankruptcy notice - whether the application must be made by or on behalf of all joint creditors.

Bankruptcy Act (1966) ss 40(1)(g), 40(3)(b) and 41(7)
Bankruptcy Rules rr 7, 10

James v Abrahams (1981) 34 ALR 657
Pollnow v Queensboro Pty Limited (unreported, Federal Court of Australia, 19 October 1988) Burchett J at p 3.
Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No. 1) (1986) 161 CLR 681
In Re Boyd. Ex parte McDermott [1895] 1 QB 611
Wilmot v Buckley (1984) 2 FCR 540
Clyne v Deputy Commissioner of Taxation (1982) 42 ALR 703
Re Ryan; Ex parte Ryan v Jupiter's Management Limited (1992) 38 FCR 127
Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 30 ALR 433
Eastick v Australia and New Zealand Banking Group Ltd (1981) 53 FLR 91
Re Bowen; Ex parte The Australian Workers' Union (1945) 13 ABC 275
Australian Workers' Union v Bowen (1946) 72 CLR 575
Re Darby (1904) 22 WN (NSW) 87
Re Pollnow (1994) 12 ACLC 88

RE: STANLEY WILLIAM THOMPSON (Debtor); EX PARTE: STANLEY WILLIAM THOMPSON (Applicant) and GRIMLEY PTY LTD and CABLESKI WORLD PTY LTD
No. QP 632 of 1995

SPENDER J
BRISBANE
23 NOVEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA     )
GENERAL DIVISION  )
   No. QP 632 of 1995 BANKRUPTCY DISTRICT OF THE             )
STATE OF QUEENSLAND                  )

RE:STANLEY WILLIAM THOMPSON
Debtor

EX PARTE:STANLEY WILLIAM THOMPSON
Applicant

AND:GRIMLEY PTY LTD and CABLESKI WORLD PTY LTD
Respondents

MINUTES OF ORDER

JUDGE MAKING ORDER: Spender J

DATE OF ORDER: 23 November 1995

WHERE MADE: Brisbane

THE COURT DECLARES it is satisfied that the debtor has a cross demand of the type referred to in
s. 40(1)(g) of the Bankruptcy Act 1966.

THE COURT ORDERS THAT:

The petition is dismissed.

There be no order as to costs both of the application filed on 16 October 1995 and of the petition.

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. QP 632 of 1995
BANKRUPTCY DISTRICT OF THE           )
STATE OF QUEENSLAND                  )

RE:STANLEY WILLIAM THOMPSON
Debtor

EX PARTE:STANLEY WILLIAM THOMPSON
Applicant

AND:GRIMLEY PTY LTD and CABLESKI WORLD PTY LTD
Respondents

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: [1995] FCA 1148
Decision Date: 23 Nov 1995

CaseChat Overview and Summary

The case of Re Thompson; Ex parte Thompson concerns a bankruptcy notice issued by Grimley Pty Ltd and Cableski World Pty Ltd against Stanley William Thompson. The primary issue before the Federal Court of Australia was whether Thompson had a cross-demand sufficient to prevent the enforcement of the bankruptcy notice. The court found that Thompson's affidavit, which was filed in time, established a cross-demand. The cross-demand arose from Thompson's claim for restitution in his amended statement of claim, which sought $199,000 for expenditures made on the leased property. This claim could not have been raised in the original proceeding where the costs order was made. The court concluded that the cross-demand was sufficient to satisfy the requirements of s 40(1)(g) of the Bankruptcy Act 1966, rendering the bankruptcy notice spent. The court also noted that the costs order was a joint right rather than a joint and several right, and the bankruptcy notice was invalid as it was not issued on behalf of all joint creditors. The petition was dismissed with no order as to costs.

Orders