Rixon v Bryett

[2001] FCA 963

FEDERAL COURT OF AUSTRALIA

Rixon v Bryett, in the matter of Rixon [2001] FCA 963

BANKRUPTCY – application to set aside bankruptcy notice - where judgment creditor a solicitor recovering fees from a former client - where bills for costs failed to comply with Order 38 of the Family Law Rules - whether waiver by applicant of requirements of the Family Law Rules.

Bankruptcy Act 1966 (Cth) s 41
Family Law Rules O 38

Rixon v Bryett [2001] FCA 433 referred to
Udovenko v Mitchell (1997) 79 FCR 418 applied
Re Devy; Ex parte BBC Hardware Ltd (1996) 67 FCR 355 referred to
Re King; Ex parte Gallagher Ryan & Malloney (1994) 54 FCR 493 referred to
Burrell v Connell (1998) 84 FCR 383 referred to
Dodd v Gillis (1989) 16 NSWLR 623 referred to
Re Lentini; Ex parte Lentini v CSR Ltd (1991) 29 FCR 363 referred to

GEOFFREY ALFRED RIXON V CHRISTOPHER GARY BRYETT

N 7008 of 2001

MOORE J
26 JULY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7008 OF 2001

IN THE MATTER OF GEOFFREY ALFRED RIXON

BETWEEN:	GEOFFREY ALFRED RIXON APPLICANT
AND:	CHRISTOPHER GARY BRYETT RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	26 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The bankruptcy notice served on Geoffrey Alfred Rixon on 18 December 2000 be set aside.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7008 OF 2001

IN THE MATTER OF GEOFFREY ALFRED RIXON

BETWEEN:	GEOFFREY ALFRED RIXON APPLICANT
AND:	CHRISTOPHER GARY BRYETT RESPONDENT

JUDGE:	MOORE J
DATE:	26 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application by Mr Geoffrey Alfred Rixon (“the judgment debtor”) to set aside a bankruptcy notice issued under s 41 of the Bankruptcy Act 1966 (Cth) (“the Act”). I repeat a description of the background found in an earlier judgment concerning whether time for compliance with the bankruptcy notice should be extended pending the determination of the application to set it aside: see [2001] FCA 433.

2. The judgment creditor who caused the bankruptcy notice to issue was Mr Christopher Gary Bryett, a solicitor.  The judgment debtor had been his client.  On 14 March 2000 the judgment creditor commenced proceedings in the District Court of New South Wales to recover fees allegedly owing from the judgment debtor.  They were, at least in part, fees for professional services provided by the judgment creditor to the judgment debtor in relation to proceedings in the Family Court of Australia.  On 4 May 2000 the judgment debtor obtained default judgment but on 25 May 2000 the judgment debtor moved to have the judgment set aside.  After several adjourned hearings, the motion to set aside the default judgment was dismissed on 25 August 2000 when the judgment debtor did not appear.  On 30 August 2000 a further application was made by the…