Schepis v Esanda Finance Corporation Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCHEPIS & ANOR  v ESANDA FINANCE CORPORATION LTD [2006] FMCA 905

BANKRUPTCY – Bankruptcy notice – incorrect spelling of debtors name and other confusion – whether sufficient to void bankruptcy notice – basis upon which a court should look behind a judgment.

Bankruptcy Act1966

Wren v Mahoney (1972) 126 CLR 212
Oliveri v Stafford (1989) 24 FCR 413

Applicant: ANTHONY AND MICHELE SCHEPIS

Respondent: ESANDA FINANCE CORPORATION LTD ACN 004 346 043

File number: BRG343 of 2006

Judgment of: Coker FM

Hearing date: 14 June 2006

Delivered at: Townsville

Delivered on: 14 June 2006

REPRESENTATION

Solicitors for the Applicants: Self represented

Solicitors for the Respondent: Kemp Strang

ORDERS

1. That the application to set aside the bankruptcy notice filed on 30 May 2006 be dismissed.

2. That the Applicants pay the Respondent’s costs fixed in the sum of $250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
TOWNSVILLE

BRG343 of 2006

ANTHONY AND MICHELE SCHEPIS

Applicants

And

ESANDA FINANCE CORPORATION LTD ACN 004 346 043

Respondent

REASONS FOR JUDGMENT

1. The application that is before me at this time is one brought by Anthony and Michele Schepis.  They are the recipients of a bankruptcy notice, issued by Esanda Finance Corporation Ltd.  The application that I am asked to deal with today is an application to set aside the bankruptcy notice, but also to take some further steps in relation to the proceedings and, in fact, the judgment upon which it is said the bankruptcy notice is based.

2. The orders that are sought by the applicants are in these terms:

   1.That the bankruptcy notice number NN1953 of 2005, which was served on me on May 9 2006 be set aside.  A copy of that bankruptcy notice accompanies this application.

   2.Costs and disbursements.

   Orders 3, 4, 5 and 6 then go on to request that the Court, dismiss the original judgment of the local Court after consideration of evidence produced in relation to same, based on what is suggested is fraud, collusion and/or a miscarriage, before the local Court.

3. Assuming that that particular step is taken in relation to the matter, there are then further orders sought with regard to the repayment of costs incurred in relation to all proceedings over the years and, in fact, these proceedings stem back to dispute between the applicants and respondents in 1992, or early 1993.

4. Additionally orders are sought with regard to refunding of moneys that the applicants say have been paid to the respondents, in relation to the original judgment, and an award of exemplary damages for the conduct of the respondent during the course of the proceedings since 1993.  Esanda Finance Corporation Ltd, oppose the application.

5. The basis upon which the bankruptcy notice is contested is explained in the affidavit of Anthony Schepis, the husband, if I can describe him that way, being the applicant who has sworn the affidavit in support.  It is purported or suggested by Mr Schepis that the bankruptcy notice is a confusing, misleading or incomplete document…