Scott v NIMLAW Pty Ltd

[2023] FCA 1420

FEDERAL COURT OF AUSTRALIA

Scott v NIMLAW Pty Ltd [2023] FCA 1420  

File number:

SAD 104 of 2023

Judgment of:

CHARLESWORTH J

Date of judgment:

15 November 2023

Date of publication of judgment:

17 November 2023

Catchwords:

BANKRUPTCY – application to set aside a bankruptcy notice – notice founded on a judgment debt – whether the applicant has a defence, cross-claim or set-off that could not have been erected in the proceeding in which judgment was obtained – where orders pronounced orally dismissing the application – where ex tempore reasons given – where applicant continued submissions following pronouncement of orders but before orders were entered – whether the matters raised by the applicant justified the recall or variation of the orders under r 39.04 of the Federal Court Rules 2011 (Cth) – applicant failing to show that there is any pending action in which orders are sought to set aside the judgment forming the basis of the debt specified in the bankruptcy notice – order entered

Legislation:

Bankruptcy Act 1966 (Cth) ss 40, 41, 43

Federal Court Rules 2011 (Cth) r 39.04

Cases cited:

Nimlaw Pty Ltd v Scott [2023] SADC 42

Scott v Judicial Registrar Ditton [2023] FCA 947

Division:

General Division

Registry:

South Australia

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

30

Date of hearing:

15 November 2023

Counsel for the Applicant:

The Applicant appeared in person

Counsel for the Respondent:

Mr J Rattray

Solicitor for the Respondent:

Stewart-Rattray Lawyers

ORDERS

SAD 104 of 2023

BETWEEN:

SUSAN JANE SCOTT

Applicant

AND:

NIMLAW PTY LTD

Respondent

ORDER MADE BY:	CHARLESWORTH J
DATE OF ORDER:	15 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The originating application be dismissed.

2.The operation of the bankruptcy notice be stayed until 48 hours following the transmission to the applicant of the Court’s written reasons for judgment.

3.The applicant is to pay the respondent’s costs of the originating application, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J

1. On 15 November 2023 the Court pronounced orders dismissing the applicant’s originating application in this proceeding.

2. Following the pronouncement of that order the applicant made additional submissions to the effect that the Court had erred in respect of an issue.

3. The Court attempted to explain to the applicant why the order dismissing the originating application would not be recalled.  However, it was not possible for the hearing to continue because the applicant had become distressed and her manner intemperate.

4. Having regard to the applicant’s status as a self-represented litigant, I will treat her forceful demonstrations following the pronouncement of the order to amount to a submission that the Court should not enter the order dismissing the originating application because the order is affected by error.

5. Accordingly, these written reasons for judgment will contain both a written record of the reasons given orally, together with the Court’s reasons as to why the matters…