Reid v Hubbard

[2003] FCA 1424

FEDERAL COURT OF AUSTRALIA

Reid v Hubbard [2003] FCA 1424

BANKRUPTCY – application by third party to set aside bankruptcy notice – whether debt exists – whether bankruptcy notice issued for an improper purpose – whether bankruptcy notice an abuse of process.

PRACTICE AND PROCEDURE – appeal from Federal Magistrate’s decision not to set aside bankruptcy notice - whether leave to appeal required.

Bankruptcy Act 1966 (Cth), ss 30(1), 40(1)(g), 41, 52(2), 303
Federal Court of Australia Act 1976 (Cth), s 24(1A)
Federal Court Rules, O 62 r 9

A-Pak Plastics Pty Ltd v Merhone Pty Ltd (1995) 120 FLR 277 applied
Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 referred to
Ling v Enrobook Pty Ltd 1997 74 FCR 19 referred to
Myers v Elman [1940] AC 282 cited
Re Athans; ex parte Athans (1991) 29 FCR 302 followed
Re Bendeich (1994) 53 FCR 422 cited
Re Briggs; ex parte Briggs v Deputy Commissioner of Taxation(WA) (1986) 12 FCR 310 followed
Re: Ousley; ex parte Commissioner of Taxation (1994) 48 FCR 131 referred to
Sandell v Porter (1966) 115 CLR 666 referred to
In Re Tweeds Garages Ltd [1962] Ch 406 cited
White Industries (Qld) Pty Ltd v Flower & Hart (1998) 156 ALR 169 cited

SUSAN REID & MICHAEL JAMES REID V JOHN HAROLD HUBBARD & ESANDCEE PTY LTD
V933 OF 2003

HEEREY J
MELBOURNE
5 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V933 OF 2003
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SUSAN REID
FIRST APPELLANT

MICHAEL JAMES REID (by his Litigation Guardian Susan Reid)
SECOND APPELLANT

AND:

JOHN HAROLD HUBBARD
FIRST RESPONDENT

ESANDCEE PTY LTD (ACN 073 887 822)
SECOND RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

5 DECEMBER 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The time for compliance with the bankruptcy notice dated 28 July 2003 be extended until 5.00 pm on 12 December 2003.

2.The appeal is otherwise dismissed.

3.The question of costs is adjourned to a date to be fixed for further argument as to whether there should be orders that

(a)the appellants pay the second respondent’s costs on an indemnity basis and

(b)such costs be paid personally, in whole or in part, by the appellants’ counsel and solicitors, or some of them.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V933 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SUSAN REID
FIRST APPLICANT

MICHAEL JAMES REID (by his Litigation Guardian Susan Reid)
SECOND APPLICANT

AND:

JOHN HAROLD HUBBARD
FIRST RESPONDENT

ESANDCEE PTY LTD (ACN 073 887 822)
SECOND RESPONDENT

JUDGE:	HEEREY J
DATE:	5 DECEMBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The appellants Mrs Susan Reid and her son Michael James Reid appeal against a judgment of Bryant CFM dismissing their application to set aside a bankruptcy notice: Reid v Hubbard & Esandcee Pty [2003]…