Romeo v Wesley College

FEDERAL COURT OF AUSTRALIA

Romeo v Wesley College [2016] FCA 240

Appeal from:

Romeo v Wesley College [2015] FCCA 3098

File number:

WAD 718 of 2015

Judge:

BARKER J

Date of judgment:

11 March 2016

Catchwords:

BANKRUPTCY AND INSOLVENCY – application to set aside bankruptcy notice under s 40(1)(g) of the Bankruptcy Act 1966 (Cth) dismissed by Federal Circuit Court – appeal from Federal Circuit Court – whether counter-claim equal to or exceeding amount of judgment debt – whether counter-claim could have been set up in proceeding in which judgment obtained – whether requirement to respond to questions or failure to adjourn procedurally fair – appeal dismissed

Legislation:

Bankruptcy Act 1966 (Cth) s 40(1)(g)

Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) R 3.02, R 3.02(2)(a), R 3.02(2)(b), R 3.02(2)(c)

Cases cited:

Nath v Clipway Pty Ltd [1999] FCA 625

Re Glew; Glew v Harrowell of Hunt & Hunt Lawyers (2003) 198 ALR 331; [2003] FCA 373

Romeo v Wesley College [2014] WADC 152

Romeo v Wesley College [2015] FCCA 3098

Date of hearing:

23 February 2016

Registry:

Western Australia

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

73

Counsel for the Appellant:

The Appellant appeared in person

Counsel for the Respondent:

Ms C Rab

Solicitor for the Respondent:

Mossensons

ORDERS

WAD 718 of 2015

BETWEEN:

JIM VINCENT ROMEO

Appellant

AND:

WESLEY COLLEGE

Respondent

JUDGE:	BARKER J
DATE OF ORDER:	11 MARCH 2016

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant to pay the costs of the respondent to be taxed, if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BARKER J:

1. On 17 November 2015, a judge of the Federal Circuit Court of Australia conducted a de novo hearing of the application, made by the appellant, Mr Jim Vincent Romeo, for review of orders made by a Registrar refusing to set aside a bankruptcy notice served on him on 30 July 2015, at the instance of Wesley College.  The judge dismissed the application with costs.  See Romeo v Wesley College [2015] FCCA 3098. This proceeding is Mr Romeo’s appeal from that judgment and the orders made.

2. The relevant question both before the Registrar and before the judge in the Court below was whether Mr Romeo had committed an act of bankruptcy in terms of s 40(1)(g) of the Bankruptcy Act 1966 (Cth). That provision relevantly provides that:

   if a creditor who has obtained against the debtor a final judgment … being a judgment … the execution of which has not been stayed … and the debtor does not:

   (i)where the notice was served in Australia – within the time specified in the notice;

   …

   comply with the requirements of the notice or satisfy the Court that he or she has a counter‑claim, set-off or cross demand equal to or exceeding the amount of the judgment debt …, being a…