Rixon v Bryett

[2001] FCA 433

FEDERAL COURT OF AUSTRALIA

Rixon v Bryett, in the matter of Rixon [2001] FCA 433

BANKRUPTCY – application to extend time for compliance with a bankruptcy notice – where judgment debtor has applied to have the bankruptcy notice set aside – where part of the debt arises from professional legal costs incurred as a result of proceedings under the Family Law Act 1975 (Cth) – where Family Law Rules relating to professional legal costs not followed – where Family Law Rules prevent proceedings to recover costs unless the Rules have first been complied with.

Bankruptcy Act 1966 (Cth) ss 41(6A), (6C), (7)
Family Law Rules Order 38 rr 38, 39 & 42

Conway v Jackson [2001] FCA 230 cited
Guss v Johnstone [2000] HCA 26, (2000) 171 ALR 598 cited
Makhoul v Barnes (1995) 60 FCR 572 cited
Neil v Nott (1994) 121 ALR 148 cited
ReCarter; ex parte National Mutual Trustees Ltd (1995) 57 FCR 185 cited
Re Lentini; ex parte Lentini v CSR Ltd (1991) 29 FCR 363 cited
Thomas v St George Bank Ltd [1999] FCA 166 cited
Wilkinson v Osborne (1915) 21 CLR 89 cited

GEOFFREY ALFRED RIXON V CHRISTOPHER GARY BRYETT

N 7008 of 2001

MOORE J
19 APRIL 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:	19 APRIL 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Time for complying with the bankruptcy notice served on Geoffrey Alfred Rixon on 18 December 2000 be extended until the application to set aside the notice has been heard and determined.

2.        Costs reserved.

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:	19 APRIL 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This judgment concerns whether time for compliance with a bankruptcy notice should be extended under s 41(6A) of the Bankruptcy Act 1966 (Cth) (“the Act”). The issue arises in the following context.

2. The judgment creditor, Mr Christopher Gary Bryett, is a solicitor.  The judgment debtor, Mr Geoffrey Alfred Rixon, 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…