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 9A-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 citedSUSAN REID & MICHAEL JAMES REID V JOHN HAROLD HUBBARD & ESANDCEE PTY LTD
V933 OF 2003HEEREY 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 APPELLANTMICHAEL JAMES REID (by his Litigation Guardian Susan Reid)
SECOND APPELLANTAND:
JOHN HAROLD HUBBARD
FIRST RESPONDENTESANDCEE PTY LTD (ACN 073 887 822)
SECOND RESPONDENTJUDGE:
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 APPLICANTMICHAEL JAMES REID (by his Litigation Guardian Susan Reid)
SECOND APPLICANTAND:
JOHN HAROLD HUBBARD
FIRST RESPONDENTESANDCEE PTY LTD (ACN 073 887 822)
SECOND RESPONDENT
JUDGE:
HEEREY J
DATE:
5 DECEMBER 2003
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
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]…
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- AGLC
- Reid v Hubbard [2003] FCA 1424
- Case
- [2003] FCA 1424
- Decision Date
CaseChat Overview and Summary
Her Honour meticulously reviewed the evidence and arguments presented, noting that Mr. Hubbard had not entered an appearance in response to the County Court writ issued by S & C. Despite this, the court acknowledged that there were uncertainties regarding Mr. Hubbard's financial position and the validity of the guarantee he had signed. The court highlighted that while Mr. Hubbard had assets under a Mareva injunction, it was not definitively clear if he was insolvent. Consequently, her Honour concluded that there were insufficient grounds to set aside the bankruptcy notice at that time. Instead, the court opted to extend the time for compliance with the bankruptcy notice to allow for the resolution of other proceedings.
In her judgment, her Honour dismissed the application to set aside the bankruptcy notice but granted an extension of time for compliance with the notice until 5.00 pm on 12 December 2003. The appeal was dismissed, and the matter of costs was adjourned for further argument on whether the appellants should bear the costs of the second respondent on an indemnity basis and whether these costs should be personally paid by the appellants' counsel and solicitors.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: HEEREY J
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